Judged before the Jury: Media Power and the Erosion of Fair Trials:

Olivia Jordan

In an age where court proceedings are live-tweeted, headlines are spread within minutes, and public opinion can be formed long before a jury is sworn in, the relationship between the free press and the right to a fair trial has never been more strained. A free and independent media plays a vital role in exposing wrongdoing and holding power to account, yet the same reporting that informs the public can risk contaminating the very justice system it seeks to scrutinise. High-profile criminal cases increasingly demonstrate how sensational or premature coverage can shape narratives, influence potential jurors, and undermine the presumption of innocence. The law is therefore faced with a difficult task: protecting open justice and freedom of expression while ensuring that defendants are judged solely on the evidence presented in court. This essay examines how modern legal systems attempt to strike this balance, and whether that balance remains workable in the digital age.

The issue arises in the balance between the need for freedom of press and the right to a fair trial. The right to freedom of expression is protected in democratic legal framework and its important scrutinising role informs the public and enforces transparency and accountability among individuals, governments, public figures, and companies. On the other hand is the legal guarantee of a fair trial. The issue arises in relation to media involvement in trials and its ability to undermine the right to a fair trial, an imperative pillar of any justice system. Intense media coverage can undermine the fairness of a trial by creating a prejudicial narrative that risks influencing jurors and eroding the presumption of innocence, a concern recognised by the European Court of Human Rights in cases such as Worm v Austria (1997), and similarly voiced by the US Supreme Court, in their warning in Sheppard v Maxwell (1966) that a “carnival atmosphere” surrounding a trial is incompatible with due process.

Under UK law, once criminal proceedings are “active”, meaning a person has been arrested, a summons or warrant has been issued, or charges have been laid, the Contempt of Court Act 1981’s strict liability rule applies, making it a contempt of court to publish material that creates a “substantial risk” of seriously prejudicing those proceedings. This “substantial risk” is assessed on a case-by-case basis and judges may order reporting restrictions or postponement orders that limit what can be published during active proceedings. Whilst the UK does have stricter rules than many other countries, such as the USA who prefer a press-proactive approach as highlighted in the Nebraska Press Ass’n v Stuart (1979) case, in the age of social media, it is clear that the 1981 legislation is outdated.

On one hand, the operation of the Contempt of Court Act 1981 does certainly provide a clear illustration of how the UK law seeks to balance press freedom with the right to a fair trial in practice. A well-known example is the 2011 Jo Yeatesmurder investigation, during which The Sun and the Daily Mirror published highly prejudicial material following the arrest of Christopher Jefferies. The High Court held that the newspapers had breached the Act’s strict liability rule by portraying Jefferies as suspicious and morally deviant, despite no evidence being tested in court. Substantial fines were imposed, with the court emphasising that such reporting created a serious risk of prejudice to future proceedings. This case is widely regarded as a textbook example of “trial by media” and demonstrates the judiciary’s willingness to enforce reporting restrictions to uphold Article 6 of the European Convention of Human Rights.

However, at the same time, the Jo Yeates case also exposes structural weaknesses in the 1981 framework. The Act was drafted for a media era dominated by print and broadcast journalism, where editorial oversight acted as a gatekeeping mechanism. In contrast, modern reporting exists within a digital ecosystem characterised by instantaneous publication, algorithmic over-dramatization, and global reach. Contempt law “rests uneasily with the realities of digital communication”, particularly where prejudicial material remails accessible online long after its initial publication.

Such challenges have been exacerbated by the rise of social media, which allows for unchecked dissemination of opinion, speculation, and misinformation. Unlike traditional journalism, social media content is rarely subject to editorial scrutiny, fact-checking, or ethical standards. Academic commentators Fenwick and Phillipson note that this environment has resulted in a surge of unverified claims and biased narratives capable of shaping public perception well before a case reaches trial. The danger is not merely theoretical: jurors are increasingly difficult to shield from online discourse, and judges have acknowledged the limitations of jury directions in counteracting the influence of digital material. This risk is mirrored more starkly in jurisdictions such as Bangladesh and Nigeria, where social media-driven outrage has, in some cases, escalated to mob-justice, with individuals punished on the basis of viral accusations rather than evidence. While the UK operates within far stronger legal safeguards, these examples illustrate how digitally amplified public sentiment can bypass due process and reinforce concerns about the prejudicial power of online narratives in criminal justice systems.

Furthermore, social media accelerates the spread of information in a way that undermines the effectiveness of traditional contempt sanctions. Once prejudicial material circulates online, it becomes practically impossible to contain. As the Law Commission has observed in its recent report, enforcement mechanisms under the 1981 Act struggle to respond to anonymous users, foreign platforms, and viral content, calling into question whether the legislation remains fit for purpose in its current from. Widespread misinformation across social media platforms risks the demonisation of suspects who have not been convicted of any offence, directly undermining the presumption of innocence.

Nevertheless, it would be overstated to suggest that the 1981 Act is wholly ineffective. Recent high-profile cases, such as Attorney General v News Group Newspaper Ltd and the imposition of reporting restrictions in the Lucy Letby proceedings, demonstrate that courts continue to rely on the Act as a vital protective mechanism. The judiciary has also adapted by issuing tailored reporting restrictions and reinforcing jury directions, reflecting an effort to preserve fair trial rights without unduly supressing legitimate public interest reporting. As the European Court of Human Rights reaffirmed in Worm v Austria (1997), restrictions on press freedom may be justified where necessary to safeguard authority and impartiality of the judiciary.

Upon evaluation, the tension between free press and fair trials has been not resolved but instead intensified by technological change. While the Contempt of Court Act 1981 continues to play a crucial role in preventing overly prejudicial reporting, its limitations in the age of social media have justified academic and institutional criticism. The challenge for modern democracies is not to abandon free press in the name of fairness, but to recalibrate legal safeguards to ensure that justice is determined in the courtroom rather than in the court of public opinion.