Trials are conducted in much the same way that they have been over the last few hundred years. Media, on the other hand, is nothing compared to what it was 10 years ago much less a few hundred years ago, writes Michael Motsoeneng.
Ethics, however, do not, or at least should not, be transformed over time.
Very recently I was struck by a photograph depicting tens of photographers taking pictures of Oscar Pistorius in the court dock with his head bowed down and his hands clenched together in front of him.
I could not help but be reminded of Sarah Baartman who was exhibited as though she was no more than some commodity.
It is well known that publicity — i.e. that the courts are open to the public — is an indispensable requirement for a fair trial; failing that we would be confronted with situations of forced disappearances that the Rome Statute of the International Criminal Court has rightfully classified as a crime against humanity.
This long standing requirement is entrenched by Section 34 of our Constitution which provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
There can be no doubt that the media provides a far reaching forum in the discharge of the legal requirement and constitutional right for public hearings.
The media, however, is increasingly unidentifiable given the advent of social media which for the most part, is not subject to the same rules and standards as formal media. It is in this sphere that ethics is most threatened.
In an upcoming talk to be given at EthicsXchange, I will explore the questions of ethics in the media in general, but I will do so with a particular bias to social media.
The matter of ethics is particularly relevant for the accused, irrespective of whether they are subject to criminal prosecution or not.
To be accused of wrong doing may have the same consequences as being formally charged with the wrong. Here, I intend to deal with both instances.
Trial by media is not limited to mere accusations but in fact extends to making findings of guilt or otherwise. All of us have seen how almost every South African pronounced on the guilt or innocence of Pistorius.
The making of findings is revealed in the media when the reportage goes beyond the recording of fact and extends into the rendering of opinion.
I do not advocate against the expression of opinion. But opinion invariably carries with it perception, which in turn gives birth to bias. Bias sees only that which it wants to see and hears that which it wants to hear.
Unlike justice—best represented by Lady Justice wearing a blindfold representing objectivity, and the notion that justice should be meted out objectively, without fear or favour, regardless of identity, personal wealth, power, or weakness—opinion from the media succumbs to our bias. Properly administered justice leaves no opportunity for bias.
The only solution, in my view, would be in a separation of functions. What I mean by this is, those persons charged with trying a matter must focus on only that. And those persons charged with reporting on a matter must restrain themselves from expressing opinions. And where the temptation to do either is too great, at least allow the voice of the other to be heard. Of equal importance, provision must be made for the very likely possibility that the opinion may itself not represent truth.
In addition to the caution expressed above, one must remember the rights of the accused. The accused is, after all, innocent, until proven guilty. We should also remember, that the accused has a right to not make comments to the media, and his or her choice is by no means an indication of guilt or otherwise.
If the media, formal or otherwise, remains mindful of these principles, I believe that we will have gone some way at attaining the minimum level of ethics required.
I say minimum because that is all we could ever hope for. To seek more would risk the possibility of curtailing freedom of speech. Freedom of speech is not only a constitutional right but is in fact one of God’s gift to humanity. A birth right, never to be relinquished.
Michael Motsoeneng Bill (@mbaincorporated) is an attorney who will be speaking at the Futuregrowth EthicsXchange, November 4th at Theatre on the Square, Nelson Mandela Square, Sandton, Johannesburg.
