The Power Of Social Media And Its Influence On Decisions Of The Bar And The Bench
By Alex Izinyon, SAN
Introduction
The only constant thing is change, and navigating change to add resilience and value to our enduring institutions, such as the court, is a continuous requirement. Social media has changed the way people communicate in society.
It is an excellent educational arena for gaining knowledge, updating skills, and opening the mind and heart to the world’s treasures.
Through web-based “social networking” or “social media” services, individuals can broadcast their thoughts to millions of others in seconds and receive near- instantaneous responses. Among these services are well-known social networks such as Facebook and X (formerly “Twitter”). Because of its availability on cell phones, computers, and tablets, social media has become a vital part of everyone’s life. According to Aristotle, man is a social animal. Man’s need to connect is easily satisfied through social media.
X, Facebook, WhatsApp, Instagram, and other social media platforms have transformed the way we exchange information, communicate, and make decisions. According to Statista,
1 Nigeria had 31.6 million active social media users as at January 2023.
2 The ability to constantly participate in national discourses has had an impact on practically every aspect of life, and the legal profession is no exception. There is no doubt that social media provides judges and lawyers with unparalleled opportunity to stay connected with the communities they represent.
However, media interference in pending cases has become a typical occurrence. With social media, everyone may openly express their opinions without any communication barriers. The lack of any communication barriers indicates that the thoughts or perspectives communicated are at a global gateway, and the opinions expressed are effective in framing the views of others.
In this digital age, we now live in the era of paid and fake news, both on social media platforms and elsewhere. Thus, the need for caution, discernment and selective consumption of social media information.
The Media as a Watchdog
The media serves as a watchdog, reporting the facts as they are. It serves as a mirror for society. It informs of what is happening in the society and holds government officials accountable for their actions. The media brings facts from investigating authorities to the public’s attention so that members of the public are aware of what is going on around them. Members of the public have a right to know and share their opinions on the situation, and the media also serves as a platform for the society’s voice to be heard.
The role of the media was felt in the recently concluded 2023 Presidential Election Petition where there was a demand by social media users for the trial proceedings to be broadcast live. There have been numerous instances in which the media has been accused of conducting the trial of accused persons and passing the ‘verdict’ even before the court concludes hearing of the cases.
Social Media, the Bar and the Bench
There is a growing proclivity of lawyers (including some Senior Advocates of Nigeria) to write disparaging pieces on social media platforms or for national newspapers, which are then shared and commented on via social media, casting doubt on the judiciary’s ability to handle any particular case. These articles are published before the Court is due to hear or determine a specific case presented to it. Many lawyers have formed the unprofessional habit of making unbridled social media posts and comments on matters that are still pending before Courts. A lawyer has no business criticising a judgment of a court on social media, when he has a right to appeal against such a judgment.
Judges might be influenced by the public’s comments and feelings about a case even before it goes to trial. They are, after all, human. Judges must be aware that it is not just their active use of social media that demands careful thought, but also what information they get and from whom.
Earlier this year, after the conclusion of the 2023 Presidential Election, there was a barrage of tirades against the justices of the Presidential Election Petition Tribunal particularly the Chairman of the said tribunal. Prior to the delivery of judgment, there was a social media movement with the hash tag, “#AllEyesOnTheJudiciary”.
The netizens (a term now used to refer to “citizens of the internet”) went as far as cyberstalking and cyberbullying the justices and
calling out family members of the said justices. This is a gross violation of Section 24 of the Cybercrimes (Prohibition, Prevention, etc) Act 2015.
In 2011, the International Bar Association Legal Policy & Research Unit (IBA LPRU), formerly known as the IBA Legal Projects Team, carried out a global survey to consider the impact of Online Social Networking (OSN) on the legal profession. Sixty-One Bar Associations from 47 jurisdictions responded.
According to the study, judges’ usage of social media generated specific concerns. While just 15% of respondents said that lawyers’ use of OSN had a negative impact on the public image of the profession, 40% believed that judges’ use of OSN had a negative impact on public confidence and harmed judicial independence. A balance must be achieved between the increased accessibility to justice provided by social media and the detrimental consequences widespread criticism from misinformed critics can have on public trust in the legal system.
In Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago, Lord Atkin astutely noted that “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
While this demonstrates the importance of social media in providing citizens with a platform to scrutinize the judiciary, judges must be wary about “taking the bait.” The 280-character limit on X makes it impossible to communicate sophisticated legal points or complex decisions. Judges seeking to use social media to explain their judicial process should know that their doing so may not have an overall positive impact. For controversial matters, the short-lived nature of social media means it may not be the appropriate forum.
In these difficult times, when social distancing is a self-protection tactic, it is equally important to enforce social media distancing as a powerful way to preserving the sanctity of sacrosanct institutions such as courts of justice.
The Chief Justice of Nigeria, Justice Olukayode Ariwoola, JSC, GCON, had noted that public opinion, no matter how weighty, cannot supersede the Constitution of the country which serves as a guide for judges in the discharge of their duties, astutely noting that “criticising the judge and not the judgment is defamation.” Judges’ reputations are being shattered under the guise of ‘free speech’.
Also, the Chief Judge of the Federal Capital Territory (FCT), Husseini Baba-Yusuf, had expressed concern over the negative effects of social media on the administration of justice. He also mentioned that social media has become a menace to the administration of justice, with online harassment and cyberbullying becoming the order of the day.
It is unacceptable for lawyers to post comments or opinions on online social networking sites about judges before whom cases are pending. It is also unprofessional for lawyers to engage in media trial, whether via social media platforms or otherwise. This would be one method to combat the perceived risk of judicial influence prior to trial, and it would also take the sting out of the internet harassment judges face for matters of heightened public interest.
It is also unacceptable for lawyers to grant television, radio or newspaper interviews in which judgements of Courts are the subject of debate or commentaries. In many cases, the persons engaged in these debates may not have read the judgments being discussed. And the views expressed in such for a easily become “trending gist” on social media platforms.
It is now common knowledge that journalists almost always hang around court premises, especially when high profile political cases are being heard or decided, with a view to obtaining the views of lawyers regarding the case.
Perhaps this is done to ensure that each media house is reckoned as being prompt or current with the news. But lawyers ought to be very circumspect in such situations so as to avoid making comments that go beyond a report of what transpired in court. After the proceedings of the day or a judgment, it is unprofessional for a lawyer to make scandalous and inciting comments or analysis to the media. There are more civilized means established by law for expressing dissatisfaction with court proceedings or judgments.
There are proper ways to express disagreement with the reasoning and conclusion in proceedings or a judgment. Firstly, where the judgment is appealable to a higher court, the most effective means is to lodge an appeal to the court having appellate jurisdiction. Secondly, where the final appellate court has delivered its judgment on the matter, or where no appeal is filed and the time statutorily provided for appealing against the judgment has lapsed, to write reasoned legal analysis for publication in recognised law journals, as a scholarly critique of the judgment. When a matter is still appealable, it is still sub judice. Therefore everyone, including lawyers, must refrain from saying or doing anything that will be in breach of that trite principle. Lawyers must learn to overcome the temptation to engage in needless media grandstanding.
Freedom of Expression Under the Constitution Section 39(1) of the Constitution provides for freedom of expression and the
press. However, this freedom is subject to reasonable restrictions pursuant to Section 39(2). Also, by virtue of section 45(1)(a) of the Constitution, nothing in Sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society: in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the right and freedom of other persons. The consequence of the above provision is that though the right to Freedom of expression, including Freedom to hold opinions and to receive and impart ideas and information without interference, is guaranteed in section 39 of the Constitution, that right however is not absolute. In President, FRN v. Isa the Court of Appeal held thus:
“…the right of association guaranteed in section 37 of the Constitution, like the other rights in Chapter IV of the Constitution is not an absolute right, but a qualified right; which can be derogated from in accordance with the provision of section 41 of the 1979 Constitution. Clearly same applies to section 39 of the 1999 Constitution. The right conferred therein that every person shall be entitled to freedom of expression etc can never be absolute in a democratic set up. Otherwise it will lead to a chaotic society. The practice of various professions must be regulated to ensure order in the society.”
The Supreme Court has more recently restated this position in the case of Mitin v. C.O.P., Bayelsa State9 where the apex Court held that:
“In any event, it is settled law that the right to personal liberty guaranteed in section 35 of the Constitution and the rights guaranteed in section 37 (right to private and family life), 38 (right to freedom of thought), 39 (right to freedom of expression and the press), 40 (right to peaceful assembly and association and 41(right to freedom of movement) are not absolute. By section 45 of the Constitution, the rights guaranteed under sections 37-41 can be derogated from or limited by an Act of the National Assembly. See: A.-G., Anambra State v. Chief Chris Uba & Ors. (2005) 15NWLR (Pt. 947) 44.”
Furthermore, the language of the 1999 Constitution of Nigeria specifically mentions “any medium for the dissemination of information, ideas, and opinions,” which is broad and can be interpreted to include social media. Social media platforms are modern platforms for mass communication and quick dissemination of information, and they align with the general principles of freedom of expression outlined in the constitution.
The media, as the “fourth arm of government”, is responsible for keeping the other three institutions of democracy under check. It is responsible for objectively reporting on matters that are important. However, there is a sense in which it can be argued that the media sometimes abuses its influence to attack the judiciary, thereby crossing ethical lines.
Social Media and its Influence on Trials
Media trial is a phrase describing the impact of television, print media and electronic media coverage on a case through an attempt by the media to influence the outcome of the proceedings. Media trial also refers to the effect of media platforms reporting on a person’s image by generating a common presumption of guilt, irrespective of any decision in a court of law.
Sometimes positioned as the public court, social media users start an investigation and then shape public opinion. Under the democratic system of government, it is healthy to have social media channels to express opinions freely in accordance with the constitutionally-guaranteed freedom of expression. However, the freedom of expression guaranteed by Section 39 of the 1999 Constitution of Federal Republic of Nigeria does not include the freedom to commit contempt of court.
Social media trial constitutes both a judicial intrusion and an ethical violation.
In our days, it has become commonplace for social media users to purport to play the role of the judiciary, being judge and jury over pending cases. Media trials are getting prominent day by day, due to the decreasing trend of faith in the judicial system.
In recent times, social media has played a significant role in Nigeria’s legal landscape. Families and relatives of victims of crimes have increasingly utilized social media to seek justice. A good instance is that of the late Michael Usifo Ataga, CEO of Super TV, who was found dead in a hotel. A then 21-year-old undergraduate student of the University of Lagos named Chidinma Adaora Ojukwu was arrested and charged with his murder. The case gained widespread attention on social media, with many Nigerians using the hashtag
#JusticeForSuperTVCEO to demand justice for Ataga.10 The trial of Chidinma Adaora is still ongoing in court. Another example is the #EndSARS protests against police brutality in Nigeria, which began in 2020 and were largely organized through social media platforms such as X. The protests led to the disbandment of the Special Anti-Robbery Squad (SARS) and sparked a wider debate about the role of social media in promoting human rights in Nigeria.
Yet another example is the case of Yakubu Dogara, a former speaker of the Nigerian House of Representatives, who was accused of fraud in 2019. The matter was reopened in 2021 after a video of a witness testifying against Dogara went viral on social media11. The video was shared widely on X and other social media platforms, leading to renewed public interest in the case and calls for justice.
The widespread use of social media influences the judicial process. More importantly, the regular usage of platforms such as X and Facebook by lawyers for legal analysis of pending cases is a threat to fair trial. Thus, it is clear that social media trials violate privacy, sway public opinion, and interfere with the judicial process.
The problems posed by social media for lawyers and judges cannot be fully stated in this paper, as the frontiers of social media continue to expand on a daily basis. However, we shall venture to mention a few.
The media’s portrayal of a litigant’s earlier wrongdoings generates prejudices in the minds of citizens and judges during a trial. Furthermore, examination of social and economic elements relevant to the cases may impede a court’s path to impartiality.
By publishing inadmissible evidence and making it public, the media may bring to the judge’s (and the public’s) attention information that cannot be considered when deciding the case. This information may subconsciously influence the judge’s decision. Social media posts may result to the defamation of people who have been acquitted by the courts due to a lack of proof beyond reasonable doubt.
Social media platforms have recently become a hotbed of hostility, trolling, and bullying. Social media has been, in the aftermath of the #AllEyesOnTheJudiciary campaign, a medium for demonizing, thrashing, and attacking the Judges and public figures. Independent journalists and bloggers sometimes even go as far as creating an online poll that publishes all the “evidence” and then ask social media users to cast a guilty or not guilty vote. Such disclosures violate the trial judge’s instructions and impugn the integrity of trial.
Social Media and the Right to Fair Trial
In a social media trial, individuals do their own investigation and form opinions against a litigant before the court adjudicates over the matter. This may create prejudice in the mind of a judge before whom a matter is pending. As a result, instead of being presumed innocent, an accused in a criminal case may be presumed guilty. Not only does it interfere with the administration of justice, but it also sends a wrong message to society. The society begins to generate legal opinions based on social media reactions rather than relying on the judges.
The media, by publicizing inadmissible material, attracts the judge’s attention to issues that are not to be addressed in adjudicating the case and may subconsciously influence the judge’s decision. Another consideration is organizational fairness. These prejudices become a social sin that impacts public thinking. The most famous example is the Al-Mustapha Case, which involved the former Chief Security Officer to the late Nigerian Head of State, General Sani Abacha. Al-Mustapha was accused of ordering the murder of
Kudirat Abiola, the wife of the late Moshood Abiola. The case was highly controversial and attracted significant public attention, with many Nigerians calling for Al-Mustapha’s conviction. However, in 2012, the Court of Appeal in Lagos acquitted Al-Mustapha of the charges against him, citing a lack of evidence. The verdict was met with mixed reactions, with many Nigerians expressing disappointment and a few others welcoming the decision.
The right to a fair trial is a significant right deriving from Section 36 of the Constitution. We have already pointed out that Section 39(1) of the 1999 Constitution guarantees freedom of expression and the press. It means that every individual has the right to express his thoughts and opinions freely, and can also receive and share ideas and information without interference.
However, this right to freedom of expression is not at large, and it has constitutionally recognised limits. There are case laws that define the borders of the right to freedom of expression. The Supreme Court cases of Aviomoh v. C.O.P and Din V. African Newspapers Ltd serve as precedents on how one should utilise his freedom of expression. Karibi Whyte JSC15 has held that:
“The right to comment freely on matters of public interest is one of the fundamental rights of free speech guaranteed to the individual in our Constitution. It is so dear to the Nigerian and of vital importance and relevance to the rule of law which we so dearly treasure for our personal freedom. It is conceded that the right to discuss matters of public concern, does not confer liberty to make defamatory statements; however honestly made.”
The Indian Supreme Court in A.K. Gopalan v. Noordeen 1969 (2) SCC 734 held that a publication which is made after the ‘arrest’ of a person amounts to contempt if it is biased to the suspect. In India, Criminal contempt is divided into three types: scandalizing, prejudicing trial and hindering the administration of justice.
The laws of contempt were introduced, not only to protect the dignity and authority of the court, but to prevent unjust and unfair trials. Publications of any kind should not poison the minds of judges or attempt to frighten witnesses in a way that makes the administration of justice impossible. Parties have the right under the constitution to a fair trial in a court of law. This trial ought not to be swayed by press dictation. Democracy necessitates fairness and openness, and if they are compromised, the fundamental concept of democracy is jeopardized.
In the English case of R. v. Gray,16 it was held that contempt by speech or writing may be by scandalizing the Court itself, or by prejudicing against a party before the cause. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party constitute contempt.
Making a remark with the intent of influencing the outcome of a pending trial, whether civil or criminal, also amounts to contempt. The problem is not one of disclosure, but of meddling in the administration of justice.
In Durwode v. State17 the Court of Appeal held that:
“It is a fundamental principle of law that findings of facts and conclusion from facts of a trial court should be based on evidence
adduced before the Court and not on speculations and possibilities which are not supported by any evidence. No trial Court is allowed to draw a conclusion of facts outside the available legal evidence before it.
When a trial Court veers off course and acts on speculations and possibilities rather than on the concrete evidence before it, it obviously has abandoned its proper role and such facts or conclusions of fact found without appropriate evidence in support thereof will be regarded as perverse by an appellate court. See Akpabio v. the State (1994) 7 NWLR (Pt. 359) 635 at 669;”
The Honourable Justice Dongban-Mensem, P.C.A. reflected this concern on restraining the media in Daniel v. F.R.N,18 where his lordship held that:
“I must say that in recent times, I wonder whether the legal principle of subject “subjudice” has been abolished from our legal system.
Usually, a matter which is “sub judice” should be protected from the media, it is expected to be treated with some measure of restraint in reportage on the subject while proceedings are on-going.”
Parties have a fundamental right to a fair trial in a court of law, before an impartial tribunal, free of media dictation. On the other hand, it should be remembered that democracy requires fair play and openness. If these are restricted on the flimsiest of reasons, the very concept of democracy is jeopardized.
Section 391(1) of the Penal Code, which governs Northern Nigeria, deals with the offence of defamation but does not seem to cover defamatory material published in the digital space. Same applies to Section 60 of the Criminal Code which is applicable in Southern Nigeria.
Trial is essentially a process to be carried out by the courts only. Trial via social media is unquestionably an unwarranted intrusion into the process of justice delivery. Lawyers are familiar with the term “denial of a fair trial.” But what exactly does the phrase “denial of a fair trial” mean?
The judicial opinions’ conclusions can be summarized as follows:
- Obstruction or interference with the administration of justice in relation to a person on trial.
- Prejudiced public disclosure, which affects the accused, amounts to denial of a fair trial.
- Prejudiced publication influencing the judge’s decision and instructing the court on how to proceed with the case.
Our law does not prohibit statements made before or after the trial of a case has begun. But the publisher of an infringing article cannot hide behind the argument that the trial to which the item refers is not currently underway or is about to begin. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice.
Media trial is definitely an undue interference in the process of justice delivery, and it has to be nipped in the bud.
Regulation of Media Practitioners
There is nowhere in the world where media practitioners enjoy unlimited liberty to conduct their activities in any manner that they please according to their whims. For the common good of society, laws exist to regulate the practice of journalism.
In the UK the Independent Press Standards Organisation (IPSO) regulates the majority of the UK’s newspapers and magazines, ensuring that they adhere to the Editors’ Code of Practice. The IPSO deals with complaints from the public about the editorial content of newspapers and magazines. Broadcast media in the UK, including television and radio, is regulated by Ofcom (the Office of Communications), which sets and enforces standards for content on television and radio, including rules related to fairness and privacy.
Although journalists in the United States are generally not required to obtain a specific license or registration to practice their profession, they are required to adhere to professional codes of ethics established by journalism organizations, such as the Society of Professional Journalists (SPJ).
In South Africa, the Independent Communications Authority of South Africa (ICASA) is responsible for regulating the broadcasting sector. The Broadcasting Act grants ICASA the authority to issue broadcasting licenses and regulate the conduct of broadcasters. The Press Council of South Africa, along with the Press Ombudsman, oversees print media ethics and complaints. The Broadcasting Complaints Commission of South Africa (BCCSA) addresses complaints related to broadcasting content.
In Nigeria, while there is no shortage of laws regulating the conduct of media practitioners, the question is whether the laws apply to non-journalists who do journalistic work via social media. The Nigerian Press Council Act establishes the Nigerian Press Council, a regulatory body responsible for promoting high professional standards for the Nigerian press. The Press Council has the authority to regulate the conduct of journalists and address issues of professional misconduct by journalists. The long title of the Act encapsulates its purpose thus:
“An Act to … establish the Nigerian Press Council to promote high professional standards for the Nigerian press, and deal with complaints emanating from members of the public about the conduct of journalists in their professional capacity…”
Section 19 of the Act provides for registration of journalists upon satisfaction by the Press Council that they have attended a course of training recognised by the Council, that the journalists hold an approved qualification and a certificate of experience issued in pursuance of Section 24 of the Act. Section 20 of the Act prescribes punishments for unprofessional conduct by journalists, ranging from a reprimand, suspension, etc.
Another statute worthy of mention in this regard is the National Broadcasting Commission Act.20 Section 2(1) of the Act gives the National Broadcasting Commission (the Commission) powers that extend to:
“(c) recommending applications through the Minister to the President, for the grant of radio and television licences;
(d) regulating and controlling the broadcasting industry;
(e) undertaking research and development in the broadcasting industry;
(f) receiving, considering and investigating complaints from individuals and bodies corporate or incorporate regarding the contents of a broadcast and the conduct of a broadcasting station;
(g) upholding the principles of equity and fairness in broadcasting;
(h) establishing and disseminating a national broadcasting code and setting standards with regard to the contents and quality of materials for broadcast;”
Pursuant to the powers conferred on it by the National Broadcasting Commission Act, the Commission has made the Nigerian Broadcasting Code to prescribe the minimum standard for broadcasting in the Federal Republic of Nigeria.
Recommendations
Although the media serves as a watchdog and a platform to bring people’s voices to the attention of society, today’s media is perceived as being sensationalized and perhaps only acts for pecuniary reasons. The courts and other appropriate authorities must play their roles in regulating the media. The media cannot be given full rein in court hearings because trials are not mere social events.
A suitable way to regulate the social media will be to enact Contempt of Court Laws to punish those who violate the prescribed code of conduct and to borrow a leaf from the United Nations Office on Drugs and Crime (UNODC) Guidelines on the Use of Social Media by Judges 2019.
Furthermore, persons aspiring to practice journalism ought to be trained to observe minimum acceptable standards. In addition to the foregoing, it is also recommended that media practitioners be more effectively regulated by the National Broadcasting Commission and the Nigerian Press Council, in order to ensure that journalists maintain global best practices. It must however be noted that the Federal High Court has recently held that not being a court of law, the National Broadcasting Commission has no power to impose sanctions as punishment on broadcast stations.21 The Court further held that the NBC Code, which gives the Commission the power to impose sanctions, is in conflict with Section 6 of the Constitution, which vests judicial power in the court of law.
There may be a need to amend the National Broadcasting Commission Act to make the punitive powers of the Commission to align with the current judicial pronouncements.
The courts should also not also shy away from punishing erring media houses in deserving cases. There is a need to utilise the contempt powers of courts against broadcast media channels and newspapers. It has already been highlighted here that the media’s freedom of expression should not be abused to the point where it jeopardizes existing proceedings. The media tends to prioritize more dramatic items, pushing more significant news to the back burner.
The time has also come when lawyers should be made to face disciplinary consequences for making disparaging comments in public spaces against judges, particularly when judgements do not go as they would expect. This is very necessary, especially as judges are not allowed to speak or respond to public comments concerning their judicial decisions. The Nigerian Bar Association should therefore be more effective in its duty to nip this ugly trend in the bud. There must be no sacred cows. The bar must not keep quiet and watch a few lawyers drag this noble profession into disrepute by way of reckless public statements against judicial officers. The bar has to sanitise itself. Judges also need to be careful about how they are perceived on social media.
The oft-repeated maxim – ‘Justice should not only be done but also appear to be done’, clearly puts the onus on the judges, on their demeanour, overall communication, social etiquette and conduct. A complete denial of social media by judges is not feasible but a selective, well-intentioned approach is the need of the hour.
Conclusion
The value of free expression in a true democracy cannot be overstated. No democracy can function without an effective avenue for citizens to express themselves. Social media has enormous power, and when that power is abused, it can gravely injure a nation. The Judiciary and the Media are required for a democratic system to function properly. While the former should take into account the latter’s freedom and right to cover and disseminate news of court proceedings in an open justice system, the latter should also exercise due diligence and extreme caution when reporting the former in order to preserve the former’s sanctity and ensure a free and fair trial.
Instead of tipping the scales in favour of one party or the other, social media must serve as a facilitator. The extensive use of social media in the community, the prevalent perceptions that social media discussions are less ‘official’ than those of the traditional press, and the easy access to judges’ online information, all pose unique challenges to the justice system of the twenty-first century.
The media is a very important part of our society, and social media is a powerful instrument for influencing and shaping public opinion. It is undoubtedly a useful instrument for connecting people, but if it takes precedence above the rule of law, it may lead to unimaginable consequences for our society.
