Have you ever felt that such a public trial by the media seems a bit too much?

How about letting the media go to trial?

In a word, excessive exaggeration by the media will greatly infringe on the privacy and reputation of those involved. Moreover, the incident has become the focus of the public, and it has also condensed a strong atmosphere of distrust. It has also produced many unnecessary interventions in the way of investigation or trial, severely hitting the defense of a fair trial, and even excessively deepening our perception of severe punishment. expect.

In particular, Taiwan will launch a system of “national judges” in the future . If the phenomenon of “public trials by the media” cannot be effectively restrained, it is more likely that the good will of the people to participate in trials will be severely damaged.

That is to say, a public trial by the media is not just a report with the theme of social news, but also a complex phenomenon that spans different levels of “public-media-judiciary” and runs through the entire criminal procedure. Through intensive media reports, the parties involved in the judicial system or the public sector, or the audience in society, will be involved in such fluctuations.

Looking back, after the lifting of martial law in our country, all kinds of restrictions on the media were lifted along the way. Radio and TV channels were opened one after another, and news stations were also created in large numbers like mushrooms after rain. In order to break out the competition, the news media not only launched a large number of crime reports, but also tried their best to attract the attention of the content.

As scholars sort out , reporting techniques often appear: 1. Repeated reporting of crime news for a long time. 2. The content of the report often uses exaggerated and sensational terms. 3. The crime report presents detailed criminal methods. 4. Selective non-comprehensive reporting. 5. Take a claim that needs to be proven as a fact. 6. Suggestively making accusations against the parties—reports and comments are inseparable. 7. Let problems such as the principle of the presumption of innocence and the non-disclosure of investigations exist.

Therefore, this kind of reporting mode, for the parties concerned, not only directly causes mental pressure on the criminal suspect and his family life, but also because of the biased reporting of “presumption of guilt”-even if the verdict is not guilty, the lost credibility in the process, relatives, etc. tearing apart, poor career, or exclusion from the community, causing irreparable damage to the personality, reputation, privacy, or property rights of innocent defendants.

As for the public sector, as scholars describe : “In the past, many people in the procuratorial system were full of heroic thinking and handling methods. Detention, criticism of prosecutorial governance “.

In addition, in the social atmosphere of presumption of guilt, populists have also appeared to put pressure on the judiciary, forcing prosecutors or courts, and even witnesses to have to consider the voice of public opinion.

And even if everyone can fight against this phenomenon, the more powerful the media is, the more difficult it is to reverse the impression of the presumption of guilt in society: once the court later acquits, it is very easy for the people to be disappointed with the judiciary; such a cycle “Judicial prestige” will continue to be diminished. On the other hand, if even judicial judges who have received professional training and are accustomed to such an atmosphere on weekdays will be affected by it-for the ” national judges ” who will participate in trials in the future, it may be even more difficult to resist.

Finally, for the general public, media public trials will also deepen their fear of crime. For example , the literature pointed out that National Chung Cheng University conducted a telephone survey and analysis of the public and found that the main source of citizens’ overall public security feelings is “news media reports” (62.2%), followed by “communications with relatives and friends” (16.9%), indicating that “they have been victimized by crimes.” only 11.2%. Therefore, when the public reads a lot of crime news, and the media overreports crime news, not only the fear of being killed is aroused, but also people may have more expectations for severe punishments. of the quagmire.

Why still report? The original intention of press freedom?

In order to implement democratic governance, it is actually dependent on the media to report on the administration one by one and arouse people’s comments, so that the government can be effectively supervised.

As stated in the Judicial Yuan Interpretation No. 689, “In order to ensure that the news media can provide diverse information with news value, promote the full circulation of information, satisfy the people’s right to know, form public opinion and achieve public supervision, in order to maintain Freedom of the press is an indispensable mechanism for the normal development of a democratic and pluralistic society, and should be guaranteed by Article 11 of the Constitution.”

In addition to the separation of powers in traditional countries, the perspective of checks and balances in governance is why the media is called the fourth power.

Therefore, in order to ensure the stable operation of the government, the media has more or less room to report on major and minor issues of governance; if the reporting of criminal incidents is completely prohibited, the media’s function of monitoring the development of criminal policies will be lost.

However, the reason why the news media enjoys a special status in a democratic society is because it has two major tasks of “forming public opinion and supervising politics”; it also makes the news media have to fulfill those public tasks before they can fully advocate non-interference freedom of the press.

Otherwise, if you just use the banner of freedom of the press, continue to sell fear in crime reports, attract readers to read, leave the ideal of the “fourth estate” behind, and become a profit-oriented puppet, then there is no tolerance room.

Therefore , Judicial Yuan Interpretation No. 623 pointed out that: on the premise of complying with the principle of proportionality in Article 23 of the Constitution, legislators can impose appropriate restrictions on speech through clear provisions of the law; Tongyuan Interpretation No. 509 also stated: To protect reputation and privacy In order to safeguard the public interest, the state may impose appropriate restrictions on freedom of speech.

That is to say, if the media report satisfies the audience’s desire to pursue the truth, it overly impacts the rights and interests of the parties involved, causing the downfall of the fair court and the rule of law culture; using a news report to impact the interests of all parties only In order to achieve the media’s own profits, it is necessary to appropriately use laws to draw reasonable restrictions on such reports.

Legal restrictions on reporting: Investigations are not public

In order to improve judicial operations and reduce the impact of media public trials on litigation, the Presidential Palace released the ” Report on the Results of the National Judicial Reform Conference ” in September 2017 , aiming to implement the boundaries of “undisclosed investigations”. Filming and broadcasting images of criminal suspects or related persons”, “Holding the administrative, disciplinary or criminal responsibility of those who neglect their duties”, “Empowering the parties and interested parties to correct wrong reports”, “Assisting the media to review the current relevant self-regulatory mechanisms and specifications” etc.

And what is undisclosed investigation? How does the current system work? Is there anything missing?

For example, at the poker table, we often say that the hole cards are seen by others, so it is difficult to win. Similarly, if during the investigation of a crime, someone discloses important information to the suspect or the media, then the follow-up investigation will be even more difficult; It will cause great harm to the other party’s future life.

Therefore, the “Criminal Procedure Law” contains the so-called ” undisclosed investigation ” important regulation, which is to alleviate the phenomenon of public trials by the media, so that the “procuratorate and police” can more accurately investigate and judge, and moderately protect criminal suspects or relationships human rights. In order to fully implement the non-disclosure of investigations, the “Criminal Procedure Law” authorizes the Judicial Yuan and the Executive Yuan to formulate more detailed ” Operational Measures for Non-disclosure of Investigations .” However, these measures are inevitably questionable.

The subject of undisclosed investigation is limited to public agencies, not the media?

This problem stems from the provisions of the ” Secret Investigation Operation Measures “: Personnel who should follow the non-disclosure of investigation refer to prosecutors, public prosecutors, judicial police officers, judicial police, defenders, prosecutors, or other persons who are legally involved in the investigation process. personnel performing duties. It seems that it has nothing to do with people other than “executing duties according to law”.

However , it is also mentioned later in the same method : Prosecutors, public prosecutors, judicial police officers, and judicial police may inform the defendant, criminal suspect, victim, or other interested parties of the regulations on the non-disclosure of investigations, and inform them of “do not disclose or disclose” investigations. Known procedures and content. This also seems to make those “defendants, criminal suspects, victims or other interested parties” also bear the responsibility of keeping the investigation secret.

However, even if the above-mentioned regulations continue to expand the objects that comply with the “secrecy of investigation”, they do not directly mention those media who are closely related to the development of the case (Note). And if the media is not within the scope of control, it does not necessarily have to bear the criminal and administrative responsibility for subsequent leaks of the case.

Unclear reporting boundaries?

The so-called “secrecy of investigation” is not an absolute prohibition without exception. The ” Criminal Procedure Law ” stipulates that if it is “in accordance with laws and regulations” or for “safeguarding public interests” and “protecting legitimate rights and interests,” criminal information can be disclosed appropriately. In order to clarify which matters meet the aforementioned exceptions, the ” Operation Measures for Non-disclosure of Investigations ” further stipulates seven specific disclosures.

This is because media reports can also call for clues, and are an important “tool” for the prosecutors and police to solve crimes; and moderate disclosure of investigation information can also call on the public to pay more attention to avoid further damage and ensure social order.

However, water can carry a boat, and it can also overturn it. Some of the requirements for controlling the disclosure of information may be a bit abstract, which also leaves a wide room for interpretation to the front-line personnel; it also makes some prosecutors happy to use the media. Strengthen your own litigation advantages. In the end, in terms of practical operation, the principle of non-disclosure of investigations is in vain, and “disclosure of investigations” can be freely expanded and expanded according to the needs of handling cases.

What if the report is wrong? Can it be amended and punished with contempt of court?

Regarding the mistakes, whether it is possible to ask for corrections, this involves the concept of media access rights. Under the operation of the current regulations, it can be divided into two types: ” right of reply ” and ” right of correction ” (the link is an example clause); the former allows people to be reported to the media to request a considerable opportunity to reply, and the media cannot refuse ; the latter gives relevant persons the right to request the media to correct errors within a time limit.

Those who have been reported can use those rights to initiate a plea or request correction of misinformation in less time than defamation crimes or civil law damages require time-consuming proceedings.

However, as the scholar mentioned in the paper : “The effectiveness of this method actually depends on the critical strength of public opinion, the subjective opinions of the media on the event, and even the appearance, eloquence and personality charm of the parties themselves… and other uncertain factors. If If you are not careful, choosing “On the Line of Fire” to exercise the right of correction and right of reply will easily lead to a second public trial by the media, which will lead to a vicious circle.”

Furthermore, not all media types are legally obliged to provide media access rights.

As in Interpretation No. 689 of Judicial Yuan Interpretation , Justice Chen Chunsheng once stated in an opinion letter : “The right to request correction and refutation of the reported person is not complete (including print media without regulations, and electronic media only have Article 23 of the Radio and Television Law. Article 62 of the Law on Cable TV and Article 31 of the Law on Satellite Broadcasting and Television)…At present in our country, if a media has newspapers, radio, TV, cable TV, etc. at the same time, its print media workers will follow up and report. It will lead to the fact that the pursued person has no right to request correction and refutation even if he admits that there has been a violation, and if the same enterprise group uses electronic media to quote it, it will form a loophole in the protection of audio-visual persons. It violates the constitutional requirements of the national protection obligation.”

In addition, some people will say that the punishment of “contempt of court” can be added to deal with the media’s indiscriminate reporting of criminal news. But opposing voices believe that the violation of the principle of non-disclosure of investigations in our country is often the “credit” of the prosecutors and police investigators. If the media is only held accountable for crimes, it will easily cause a chilling effect.

In Conclusion

When a specific judicial case becomes the focus, the public trial by the media will inevitably involve the parties involved in the case, their relatives and friends, and even various judicial personnel, as well as the lively crowd waiting by the side, to be involved in this passionate drama. Although all of this is to protect the “right to know” of the audience, it is difficult to implement the principle of “non-disclosure of investigation” in the process. It will bring a lot of interference and controversy to fair trials and even future penalty policies.

However, in the face of such a predicament, the relevant legal system related to the public trial of the media can be said to be quite insufficient, and it is difficult to relieve the entangled tension between the aforementioned parties ; It is more likely to push criminal cases step by step into the abyss of unjust cases. We should all urge legislators to quickly fill this gap in the legal system.

Such repeated weighing, as the author said in ” Freedom of Speech and the Guarantee of Democracy Suspended at Both Ends of the Scale “: “In the inseparable cross-strait histories, the domestic factions that separate and combine, and the treacherous and ever-changing international situation, the justice and Foreign referees gave some directions for thinking, so that we can find ways to struggle between the two floating issues of “avoiding democratic failure” and “avoiding excessive suppression of speech” before the day of world peace, so we often hear people Saying: Taiwan is really a treasure trove of public law.”