The media has had a field day with leaked details about what happened on the night Oscar Pistorius killed Reeva Steenkamp and we have all consumed it voraciously. It is the most fascinating tale to have emerged in a long time (or at least since the fall of the last sporting icon, Lance Armstrong, or the one before that, Tiger Woods).
But might justice be impaired by the evidence being leaked? Might Pistorius’s right to a fair trial be undermined?
Court reporters used to be taught that they could not introduce evidence, they could only report it as it emerged in open hearings and had to be very careful of any details which embellished the court record and which might prejudice the process of law and the presumption of innocence. Reporters who broke these rules would be called before the judge and magistrate, often in open court, and reprimanded and humiliated. They could even be charged with contempt.
But two things have happened which have changed this in recent years. Firstly, the sub judice rule – the legal reasons for the practices described above – has largely fallen away. A Supreme Court of Appeal decision in 2007 said the right to a fair trial now had to be weighed against the right to freedom of expression. Without a jury system, it was much more difficult for the media to prejudice the case, so the court narrowed down the restriction considerably. It is now very hard to break the sub judice rule and no-one has been called on it in recent years.
Secondly, we have the rise of social media. This means that whatever rules journalists might follow, there is a flow of information which goes through no gatekeepers and obeys few rules and gets out there anyway. So the reports – whether factual, or just rumour – spread virally and the media looks a bit silly if it is not reporting things that a lot of people are hearing about anyway.
It also means that both parties to a dispute have much greater capacity to use anonymous leaks to try and shape the story. It is no accident that Pistorius has flown in a high-powered international public relations consultant. His job will be to do just this: to counter the way the prosecuting authorities appear to be using leaks to frame the story to their advantage. It is this public relations battle that is most likely to prejudice public opinion and threaten to derail justice.
Even if journalists are within the law, there remains serious ethical and professional concerns. Evidence and allegations leak, whether it is intentional or not. This evidence is untested, and the other party is often constrained from responding to it, for fear of damaging their case. That evidence can convict a person in the public eye before anyone has been able to examine and challenge the evidence. A person who is technically still innocent until proven guilty may be unfairly accused and justice may be impaired – particularly when there are populist and opportunistic demands for quick and brutal justice.
So, even if the old rules don’t apply, and evidence or allegations or even rumour can be published, journalists have to be meticulous in making it clear that this information is untested and partial, that it is not the complete story and the accused is still entitled to a full and fair trial. They have to make sure they are serving justice and not one party in the process. These rules may not apply to everyone on Twitter, but it should apply to journalists who want to be seen to be credible and authoritative.
Twitter is largely just digitalised chatter: a fantastic tool to accelerate public discussion and exchange. There would always have been those who spread speculation and gossip about a case such as this, only now it spreads wider and quicker. Our role as journalists is to verify information, and turn it into something useful for the consumer because it is balanced, contextualised and understandable – something that gives them value and they are prepared to pay for. If we just do what everyone else does on Twitter, then we are devaluing our work at a time when we have to get people to see the value and be willing to cough up for what we offer them.
To do that, we still need to follow a set of rules and practices which separate what we do from the gossips and rumour-mongerers. Even if others don’t, we need to ensure that people know the partial and one-sided nature of most of the information that is emerging.
I am not suggesting we should not report the cricket bat and the number of shots and what gun he used and all those absorbing details. We would look silly if it was on social media and not the mainstream media. But we do have to be conscious of how we present and frame such information, and do it with care and responsibility.
Otherwise we make ourselves redundant as journalists. Why would people need us if we are doing the same as every social media gossiper?