Trial by On-Line Ordeal?

By November 20, 2017Blog

Trial by ordeal a fair few centuries ago, whether by fire, ingestion or drowning reasoned that divine intervention, judicium dei, would decide the guilt or innocence of the accused. Decisions after ordeals like plucking roasting stones out of boiling water could be delayed a few days to see if wounds healed or festered.  According to legend, Saint Edward the Confessor allowed his mother Emma of Normandy to be subject to walking over nine red hot ploughshares to prove her innocence against allegations of improper conduct with a bishop, a very hot topic in medieval Europe.

So what would a medieval version of Twitter have made of it all?  Would a few days suffering have been allowed to test guilt or innocence or would the size of the mob at the gates have adversely influenced the judges? Emma escaped unharmed and died without losing her position as mother of the king in 1052, but one wonders about Emma’s fate today.

It’s pretty easy to pay homage to human rights when the cases are calm, clear cut and overseas, much harder when the accused is unpopular, the issues subjective and the action is on our doorstep -but that’s when it matters most, surely?

If, like me, you feel instinctively that there is something disturbing about the acceleration in accusations on social media, you are probably concerned about the age old principle of matching the punishment to the crime. Losing one’s ability to follow a chosen career is, short of serving a long term prison sentence, a very severe outcome and ought first to be met by carefully considered due process.  After all matching punishment to crimes dates as far back as the Code of Hammurabi in 1754 BCE.

Much of our present day due process was grounded in a wet bogland, a site chosen to discourage military action by the leadership of two bitterly opposing armed camps who met at Runnymede near Windsor on June 15th 1215. King John ventured out from his stronghold at Windsor Castle to meet with the rebel barons to sign a peace treaty, the Magna Carta Libertatum, Medieval Latin for the Great Charter of Liberties and known throughout history ever since as the Magna Carta.

A keystone in the development of democracies yet to come, the Magna Carta established the rights of individuals by diminishing the absolute power of the king, including its famous clause 39, bolstered a few months later when Pope Innocent III forbade clerical involvement in trial by ordeal, establishing trial by ‘twelve good men and true’ to deliver verdicts. The right to trial by one’s peers, a cornerstone in modern justice was tested to its limit when Cromwell failed twice to overturn the jury verdict of ‘Freeborn John Lilburne (1614-1657) on charges of treason for exercising free speech.

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

To suggest that organisations in the business of protecting brands are not adversely influenced by parabolic outrage on social media like Twitter (which continues to allow anonymity to campaigns organised on an industrial scale) is illogical.  After all what is the purpose of stoking outrage, except to probe for feeble, fearful and fragile management. The real test for us all is not when observing the rights of the accused in easy cases but when it is not easy, when the crowd is baying for swift action against the accused, compressing the normal steps in natural justice to a few days or even a few hours.

There is an overwhelming case for seeking justice across a variety of long term injustices, whether its inequality or exposing harmful behavior from sex pests and it is, understandably, quite difficult for those in a state of outrage to take a breath and consider the rights to natural justice which they wish to deny others -but ask yourself if a loved one were the accused how would you feel if these were denied;

  • The right to a hearing or a trial by a jury of peers or by a judge
  • The right to be heard in a timely manner
  • The right to be informed of the nature of all accusations
  • The right to confront witnesses against you
  • The right to have legal counsel available to you
  • The right to compel witnesses to testify on your behalf

Due process, even within HR functions in organisations requires that laws and procedures are equally applied fairly across all people regardless of stature. The question we face, I think is if the current phenomen of on-line outrage and vilification of targets constitutes cruel and unusual punishment and if by continuing to let social platforms remain unaccountable for some of the worst excesses, we have unintentionally returned to trial by ordeal?

I’m not sure myself, that’s the truth and I don’t know what the solution ought to be, after all, one cannot roll back technology but I feel that, platforms ought to be held as accountable as conventional media both in terms of transparency of authors and their content (and which includes clear labeling of paid for advertorials). Until and unless we reach a point where all accusations on social media are openly owned by identified authors, it seems that we risk much. What seems to be needed is a pause for a national conversation with legal experts in human rights about how to balance rights to free speech with rights to reputation within the new media space.

Eddie Hobbs

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