Pre-Trial Publicity: the Interplay between Freedom of Expression, Access to Justice, Presumption of Innocence and the Right to an Effective Remedy

The relation between crime, criminal justice and media has been seen in a new light since the advent of digital and social media, a context where the defence may have to respond to criminal charges (if any), negative publicity and the public opinion. Aiming to address the blurring of the boundaries between the judicial determination of guilt and labelling, the ECtHR jurisprudence and the Directive (EU) 2016/343 entail an express prohibition on public statements of authorities suggesting or implying a defendant’s guilt before the final judgment. Notwithstanding this, public premature expressions by private actors of a defendant’s guilt fall outside the material scope of the presumption of innocence – instead, they may be protected under the freedom of expression and indirectly justified in the name of the victim’s right to an effective remedy. Using the media coverage of the Greek #metoo movement as an inspiration platform, this paper embarks on an exploration of the case of pre-trial publicity. It delves into the roles of media, defendants and victims in their capacity as right-holders in order to examine the interplay between the freedom of expression, presumption of innocence and the right to an effective remedy. It showcases lacunas of protection and assesses critically national responses to “crime in the news”. Lastly, it argues in favour of alternative positive interventions to resolve this conflict of interests.