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Journal of Media Law & Ethics UNIVERSITY OF BALTIMORE SCHOOL OF LAW JOURNAL OF MEDIA LAW & ETHICS Editor ERIC B. EASTON, PROFESSOR EMERITUS University of Baltimore School of Law EDITORIAL BOARD MEMBERS BENJAMIN BENNETT-CARPENTER, Special Lecturer, Oakland Univ. (Michigan) STUART BROTMAN, Distinguished Professor of Media Management & Law, Univ. of Tennessee L. SUSAN CARTER, Professor Emeritus, Michigan State University ANTHONY FARGO, Associate Professor, Indiana University AMY GAJDA, Professor of Law, Tulane University STEVEN MICHAEL HALLOCK, Professor of Journalism, Point Park University MARTIN E. HALSTUK, Professor Emeritus, Pennsylvania State University CHRISTOPHER HANSON, Associate Professor, University of Maryland ELLIOT KING, Professor, Loyola University Maryland JANE KIRTLEY, Silha Professor of Media Ethics & Law, University of Minnesota NORMAN P. LEWIS, Associate Professor, University of Florida KAREN M. MARKIN, Dir. of Research Development, University of Rhode Island KIRSTEN MOGENSEN, Associate Professor, Roskilde University (Denmark) KATHLEEN K. OLSON, Professor, Lehigh University RICHARD J. PELTZ-STEELE, Chancellor Professor, Univ. of Mass. School of Law JAMES LYNN STEWART, Professor, Nicholls State University CHRISTOPHER R. TERRY, Assistant Professor, University of Minnesota DOREEN WEISENHAUS, Associate Professor, Northwestern University UB Journal of Media Law & Ethics, Vol. 8, No. 2 (Fall/Winter 2020) 1 Submissions The University of Baltimore Journal of Media Law & Ethics (ISSN1940-9389) is an on-line, peer- reviewed journal published quarterly by the University of Baltimore School of Law. JMLE seeks theoretical and analytical manuscripts that advance the understanding of media law and ethics in society. Submissions may have a legal, historical, or social science orientation, but must focus on media law or ethics. All theoretical perspectives are welcome. All manuscripts undergo blind peer review. Access to JMLE is available to the public at no charge. Exclusivity: All manuscripts must be original and must not be under consideration at other journals. Peer Review: All manuscripts will undergo blind peer review. The normal review period is three months or less. Submissions: The ideal length for submitted papers is 20-30 double-spaced pages (6,000 to 8,000 words using 12-point Times Roman or equivalent type), including footnotes, tables, and figures. Longer manuscripts will be considered when space is available. The submission and review process will be electronic; all manuscripts should be prepared using Microsoft Word or converted to that format. One electronic copy should be e-mailed to the editor, Eric B. Easton, [email protected]. Manuscript Preparation: All footnotes should be in Bluebook form. All text must be double-spaced except tables and figures, which must be "camera-ready." Microsoft Word is the required software program for formatting manuscripts. The title page should include the title of the manuscript, names and affiliations of all authors, as well as their addresses, phone numbers, and e-mail addresses. Five key words for referencing the document in electronic databases are also required. Only the title page should contain identifying information. The second page should include the manuscript title and an abstract of 150 to 250 words. All figures and tables must be formatted to 5.5 inches in width and no more than 7.5 inches in height. Copyright and Production Notes: All works submitted must be original and must not have been published elsewhere. Authors of works that are selected for publication shall retain the copyright in their works. However, authors should give the Journal of Media Law & Ethics and the University of Baltimore School of Law a nonexclusive right to publish the work in journals, books, or any other collections that it may publish at the same time or in the future. Authors shall be given credit in such works and will continue to control the copyright in their own works. After a manuscript is accepted for publication, the author or authors are expected to proofread and edit the page proofs when they are provided. Permissions: Authors are responsible for obtaining permission from copyright owners to use lengthy quotations (450 words or more) or to reprint or adapt a table or figure that has been published elsewhere. Authors should write to the original copyright holder requesting nonexclusive permission to reproduce the material in this journal and in future publications of the University of Baltimore School of Law. UB Journal of Media Law & Ethics, Vol. 8, No. 2 (Fall/Winter 2020) 2 UNIVERSITY OF BALTIMORE SCHOOL OF LAW JOURNAL OF MEDIA LAW & ETHICS Volume 8, Number 2 Fall/Winter 2020 Articles 4 ZIA AKHTAR Social Media Access, Jury Restraint and the Right to a Fair Trial 21 MARK GRABOWSKI To Post or Not To Post: The Ethics of Mugshot Websites 37 ERIC P. ROBINSON & MORGAN B. HILL The Trouble with “True Threats” 68 YONG TANG Merely Window Dressing or Substantial Authoritarian Transparency? Twelve Years of Enforcing China’s Version of Freedom of Information Law 102 CHRISTOPHER TERRY, JONATHAN ANDERSON, SARAH KAY WILEY, & SCOTT MEMMEL Free Expression or Protected Speech? Looking for the Concept of State Action in News UB Journal of Media Law & Ethics, Vol. 8, No. 2 (Fall/Winter 2020) 3 Social Media Access, Jury Restraint and the Right to a Fair Trial Zia Akhtar* The digital age of internet publishing has allowed the presence in the electronic media information about individuals that leads to their profiling. This can cause the members of the public who sit on juries to be influenced by the prejudicial content of those charged with a crime. The right to a fair trial under Article 6 of the Human Rights Act can be compromised if the jury members are able to access a suspect's personal details and convey it to fellow members which can undermine the defendant's ability to be judged solely on the basis of the crime charged. In the UK the Juries Act 1974, as amended by the Criminal Courts and Justice Act 2015, serves to establish a procedure for trials that stipulates the removal of electronic device for a member of the jury who may not download information of the defendant in the course of the trial. The Contempt of Courts Act 1981 regulates the behaviour of the jury and provides sanctions for conduct that impinges on the court process. The English framework has parallels with the US and Australian legal systems where the jury is also fettered in accessing social media but where the access to the internet for communication about the case and blogging for jurors is permitted. The argument in this paper is that the misuse by the jury of information on the internet about the defendant should be preempted by a legal code that prevents access to the defendant's previous record. Keywords: Right to a fair trial, Juries Act 1974, Contempt of Court Act 1981, Criminal Justice and Courts Act 2015, due process clause, freedom of expression, bloggers I. Introduction In the common law systems there has been considerable apprehension about the impact of social media on jury trials because the internet can prejudice the fair trial of the accused. This could lead to the risk of the jury’s assuming the defendant's lack of innocence and a presumption of guilt. The issue for the criminal justice system is to decide when access to social media is permissible and when it endangers the defendant's opportunity to receive a fair trial and a jury verdict that is not tainted with bias.1 The criminal trials in England and Wales are regulated by the Director of Public Prosecutions (DPP) who has published guidelines for the Crown Prosecution Service (CPS) on 1 In R v. Karakaya [2005] Crim. App. 5, the Court stated: “If material is obtained or used by the jury privately, whether before or after retirement, two linked principles are bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge, and in an appropriate case, the Court of Appeal Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial..." Lord Chief Justice Judge, ¶¶24-25 UB Journal of Media Law & Ethics, Vol. 8, No. 2 (Fall/Winter 2020) 4 how proceedings in the court may be impacted by social media.2 These are structured according to the different forms of behavior that comprise the potential offences which relate to the internet. There is also guidance on the framework of statutes designed to deal with on-line abuse and extends to the Protection from Harassment Act 1997 that creates liability for “alarming a person or causing distress” (section 7(2)) and includes “speech” (§ 7(4)) as applicable to written communications. The Malicious Communications Act 1988 creates offences under section 1 of electronic communications which are indecent or grossly offensive and convey a false threat, provided that there is an intention to cause distress or anxiety to the victim. These offences are triable in both the Magistrates’ and Crown Court. The Communications Act 2003, section 127 penalises electronic communications of a menacing character which are grossly offensive or indecent, obscene or menacing, or false, for the purpose of causing annoyance, inconvenience or needless anxiety to another. This offence is only triable in the Magistrates’ Court. The offence of communications sent through social media may alone, or together with other behaviour, amount to an offence of controlling or coercive behaviour in an intimate or family relationship bearing on criminal liability under section 76 of the Serious Crime Act 2015.
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