1 Trust

Trust has become a central issue in an era when general social trust, and especially trust in public institutions, is in decline. This downward trend has been a feature of democratic societies for a while [54].Footnote 1 According to Putnam, American trust in law, courts and governments has registered a decrease since 1966 at least.Footnote 2 While the reasons and the manifestations of this trend are manifold, this article focuses on how trust in the media and in the judiciary are related and how they can be addressed. In the past decades, when the information environment has been reordered the media has also encountered turmoil. This resulted in a worldwide wave of populism,Footnote 3 for which the flat hierarchy of social media networks has provided an ideal basis. One of the major weapons of populism is to undermine trust in the establishment and offer simplistic solutions to existing social pressures. Strategic disinformation achieves this not merely by seeding distrust against specific institutions, but by raising disbelief in objective truth more generally,Footnote 4 and by denigrating expertise of all kinds, including legal.

1.1 About trust: trust as a bond

Warren describes trust as an individual’s judgement that another person is both motivated and competent to act in the individual’s interests and will do so without overseeing or monitoring. If this assumed trust is met with trustworthy responses, then a relationship of trust will develop.Footnote 5 Trust is so fundamental in human civilisation that it is hard to imagine humans as social beings without the ability to trust, and, even more, societies to function without trust.

However, distrust is also a necessary component of trust. For assumed trust can be lost if the response is inadequate, and it needs to be re-earned with long-term, consistent behaviour. In the case of political governance, democracy grows out of distrust against authoritarian rulers. The systems of separation of powers, and of checks and balances, maintain a continuous monitoring, checking on governance in every relevant aspect. Power is entrusted to the parliament through elections and transferred on to the executive; this trust is, however, conditional, monitored regularly and closely, with a regulated process of withdrawal at hand. The third branch of power, the judiciary, is free from external control, which is to guarantee its independence. Independence of courts constitutes the primary component upon which trust in the judiciary is built,Footnote 6 and is also an indispensable condition for the separation of powers.Footnote 7

1.2 The emotional side of trust

The concept of trust inherently carries with it a risk, often unnoticed by individuals. Taking the risk of vulnerability is commonly a defining trait of trust, accurately capturing its essence. Trust involves opening oneself up and exposing oneself to others. Further division can be made based on the attitude with which this risk is assumed. I will call the first type of anticipated trust “assumed trust” (also commonly called “blind trust”Footnote 8). This is the type of advantage that is granted without having prior experience, giving the benefit of the doubt. This is the approved way of trust in relationships which are a) optional;Footnote 9 b) based on love; c) asymmetric, in which case assumed trust is granted to the person who holds the more vulnerable position. For example, like trusting a stranger, a family member, or assuming the innocence of the suspect in a criminal proceeding.Footnote 10 This categorisation does not claim to be exhaustive.

I will call the other type “cautionary trust”: this needs to be earned constantly (also called “earned trust”). This appears in relationships a) when the original, assumed/blind trust was broken; b) which are asymmetric, towards the person or entity who holds the powerful position. Relationships which are unvoluntary are not specifically mentioned here, because they can be ordered either into the first or the second category under cautionary trust. The lack of voluntariness per definitionem means that the assumed trust is non-existent, either because of coercion or because of the asymmetric position of the parties. This attitude could also be called simply “distrust”, however, the relationship is still entered into, the risk of vulnerability is still taken (often for lack of other choice), and there is a possibility to earn the trust, and prove as “trustworthy”.Footnote 11 Then the relationship can turn into a relationship of trust again, even if elements of caution are retained, as I will further unfold below.

1.3 Achieving trust by institutionalising distrust

Democracy is characterised by a careful mixture of assumed and earned trust, or in other words, trust and distrust. The parts of government that function with trust and those with distrust are institutionally separated. On the one hand, the political parts that manage conflicting areas, and are therefore battlefields of political fights, function under constant distrust; on the other hand, agencies that provide public goods in which there is a substantial agreement, do so on a professional basis, protected by political agendas and patronage, function with trust.Footnote 12 In political decision-making bodies, democracies have institutionalised distrust by containing it and channelling it in formal ways of scrutiny and monitoring. This formalised control prevents distrust from generalising and spreading to other parts of the government that are designed to hold public trust. As long as citizens trust in the process which keeps control over executive and legislative power, the endowed trust confers legitimacy to the government. In the democratic process, the conditions of trust are systematically reproduced, and conflicting issues resolved through democratic public discourse and subsequent voting, as they drive alignment of interests and values between political elites and citizens.Footnote 13 Technically, it is the democratic process which becomes the holder of trust. As soon as the process of checks and balances, and other control tools become compromised, the governing power loses the trust that those elements delivered. The judiciary and the media are part of this system, both functioning as watchdogs of the governing power. The judiciary through its independence and its possibility to survey even acts of government and legislative decisions,Footnote 14 and the media through representing critical views and opinions.

1.4 Mutual trust

The morality of trust can only be interpreted within a group, therefore its moral value is borrowed from the ingroup. This is how trust can also exist between members of a criminal alliance. The fragility of this trust relates to the insecurity of membership and depends on loyalty to the leader. The more certain the group membership is, the more robust the trust for the ingroup can be. Characteristically, families with strong ties, nationalists with strong patriotic feelings, and other closed societies maintain robust trust among their members, and deny such trust to outsiders. Trust that is granted to members of the outgroup is often perceived as a surprising extension of morality, an enhanced manifestation of selflessness and as such, a spiritual breakthrough. For example, in the novel Les Misérables, the bishop Myriel gives silver cutlery and chandeliers to Jean Valjean, the escaped galleon; in various variations of a Buddhist tale, the thief, similarly, receives the last remaining valuables of the house as a gift from the monk.Footnote 15

The definition of the group boundaries is what lends special importance to the mutual trust among EU Member States. The assumed trust among the EU courts makes cooperation highly effective. This assumption of trust is not entirely unconditional. However, only exceptional circumstances warrant deviating from the mutual trust principle [41].Footnote 16 These were further specified in Aranyosi and Căldăraru [30],Footnote 17 the case which shifted “blind trust” to “earned trust”.Footnote 18 Primarily, a general suspension of mutual recognition would be allowed when a Member State has been condemned under the sanctioning arm of the Article 7 procedure; in absence of this, a two-prong-test can invalidate the presumption in individual cases, if both conditions are satisfied. First, that the state in question suffers from general deficiencies; second, that a person concerned by a European Arrest Warrant will be exposed to a real risk of a human rights violation.Footnote 19 In short, in absence of a pre-defined and clear process that would channel distrust to a constructive decision, the costs of challenging the presumption of trust are exceptionally high.

1.5 The specific elements of trust in courts

Insecurity, or a lack of full knowledge is a constant element of each type of trust. Moreover, even the cautionary trust relies on a belief, for lack of absolute evidence of the truth. In the case of the judiciary, the elements of cautionary trust include independence on the one hand, and control over the process on the other hand. Control over the judicial process manifests in procedural fairness, including impartiality and neutrality.Footnote 20 Fairness provides the perception of having control over the process, or at the least, ensuring that no other parties exert undue control over it, which is also an understanding of independence.Footnote 21

A systemic control over the process of election and supervision of judges is not such that would afford accountability to the public or any specific supervisory organ outside the judicial organisation, other than the media’s scrutiny. It is precisely the absence of such external supervisory powers which yields courts’ independence as the key to their trustworthiness.Footnote 22 Thus, although the rules that are supposed to ensure independence of the courts and of judges are the same type of procedural rules as the ones that channel distrust and perform the control function for other institutions, the former ones are to ensure non-interference, rather than interference.

A consistent affirmation of the (both assumed and cautionary) trust can lead to a relationship of trust,Footnote 23 also called predictability,Footnote 24 or trustworthiness. As van Dijk puts it, “acceptance of authority requires a certain level of faith.”Footnote 25 Courts’ authority depends upon public acceptance of their role, especially as they do not have their own enforcement instruments – those are borrowed from the executive arm. According to Hardin, trustworthiness is the commitment and capacity to do what one is trusted to do.Footnote 26 The problem with both the courts and the media (and with AI) is, however, more complex. We have no direct knowledge that the outcome we receive is of the appropriate quality: truthful, fair, professional, complete, etc. Our tools to verify this are limited, moreover, the procedure of making sure that the result is as expected is highly costly in terms of time, investment, knowledge, and complexity. Consequently, society needs assurances that allow it to afford ‘blind trust’ in both courts and media, simply because it is impossible to keep efficient control over each output that they produce.

While it has been stated that the constitution and functioning of courts are not subject to a controlling process, there are nonetheless values in place to monitor the fulfilment of expectations. Among these are accountability and transparency.

The requirement of accountability serves to contain, within limits, the liberty of the judiciary, a liberty endowed by their independence.Footnote 27 Complete independence may give the impression of arbitrariness or overactivity. Accountability is supposed to channel a healthy level of distrust amidst the independence. This requirement includes that adequate and detailed reasoning is provided to justify the judgment.Footnote 28

Transparency allows insight into the courts’ operation, including regular reporting not merely about trials, but also about the quality of the court’s functioning, in particular whether they are sufficiently objective, impartial and independent. If anomalies are reported, courts are expected to act upon this and report about the steps taken. Transparency is also about the popular perception (“To know courts is to love them”Footnote 29) and should increasingly include communicating and engaging with citizens.Footnote 30 Even though, courts do not need popular trust as members of the government and of the parliament, which could explain why there is significantly less research on trust in courts than on trust in government and other public institutions.Footnote 31 However, since the judiciary form part of the controlling process which ensures the control of the legislative, and occasionally of the legal functioning of state institutions, trust in courts is a crucial aggregator of all threads of trust in other branches of power. Hence, transparency holds paramount importance, as it ensures that other values such as independence and accountability are visible to citizens. The glory of judicial independence shines on governments as well, whereas a court’s capacity to resist pressures even towards illiberal forms of governance raise their ability to maintain public trust.Footnote 32 When trust is characterised as a faith, it also implies that the components constituting trust are merely indirectly accessible to the public, primarily through media reporting. According to van Dijk, perceived independence of courts is nothing other than maintaining a belief in their independence.Footnote 33

2 The age of post-truth

2.1 Impacts on trust in courts and media

The judiciary serves as an independent control of legality, while the media acts as a watchdog over all branches of state power, including the judiciary. Both courts and the media are prime targets of populist governments and political movements. The main attacks typically take place through abusive laws or administrative regulations aimed at curtailing the independence of courts and of the media.Footnote 34 However, these are always supported with a narrative. In Poland, the official narrative of the governing party identified the judiciary with the old communist regime, depicted them as representing communist elites.Footnote 35 Also in Hungary, the same narrative served the illegal removal of all judges above the age of 62 to fill up the judiciary with new, loyal judges [13].Footnote 36 Oppositional populist movements often portray the judiciary as servants of a corrupt establishment. Once the populist force assumes governing power, the judiciary can also be labelled as an obstacle to the ‘will of the people’.Footnote 37 A captured media can be utilised as a vehicle to carry these propagandistic messages, to discredit the courts, hindering it in fulfilling its function to preserve legality. In Hungary, the first target of the illiberal regime was the media, then the Constitutional Court and the entire system of checks and balances, whereas the grip on the judiciary fastened rather gradually.Footnote 38 However, in Poland, the illiberal turn started directly with the judiciary, and then tackled the media.

Discrediting of courts can take on diverse forms across the world. For example, in cases of controversial or politically loaded decisions, the government may accuse the court of bias, corruption, or tampered evidence, such as in the cases related to election fraud charges in the US.Footnote 39 In Brazil, systematic disinformation and populistic propaganda were disseminated in the Bolsonaro re-election campaign until the Brazilian High Court held certain citizens and politicians directly accountable for the disinformation campaigns. The Court ordered the removal of social media profiles for hate speech, or for attacking the Supreme Court with disinformation, affecting several of Bolsonaro’s allies and effectively quashing disinformation networks. After the subsequent victory of Lula, a mob of Bolsonaro’s supporters violently attacked three official buildings, among them that of the Supreme Court.Footnote 40

2.2 The illusions raised by social media platforms

Social media has flattened the hierarchy of public communication, eradicating old entry barriers and fostering a hyper-pluralistic and hyper-democratic information landscape. It is hyper-democratic because individuals, regardless of social class or status, have equal chances to disseminate thoughts, ideas and opinions, or to participate in ongoing discourse through actions such as sharing and liking. And it is hyper-pluralistic because of the resulting diverse, and overwhelmingly voluminous, pool of information. However, the ‘hyperness’ of these qualities signals that the value in the qualities cannot be fully exploited: neither pluralism, nor democratic processes are optimally maximised by the current communication structure. The landscape merely gives the illusion of freedom, pluralism, and of the opinion power to ordinary users, but without the actual power to leverage these advances.Footnote 41 The actual political processes have not adjusted to the heightened transparency of public discourse, resulting in a disconnect between the political elite and policies and the genuine needs and frustrations of society. The hyper-democratic structure of online platforms benefit freedom of expression which is helpful against an authoritarian establishment, just as it can also boost extremist movements attacking democratic state institutions. This creates fertile ground for populist political rhetoric, which promises change without the genuine intention or ability to enact the necessary reforms. Research has shown that populist politicians benefit more from this information landscape.Footnote 42 Besides the fact that every new minority movement benefits considerably from the aggregative functions and the low entry barriers of social media, emotional and easily accessible content is always more popular than reasonable and balanced information. The ordering factor of information is almost exclusively popularity, to maximise advertising revenues. At least it has been, until recently, when very large online platforms were incentivised to submit to the Strengthened Code of Practice against Disinformation. This has been drafted under the guidance of the European Commission and includes important voluntary measures that aim at securing a more transparent and trustworthy online environment.Footnote 43

In addition, populist politicians find direct access to their constituencies without the moderating, objectivising interpretation and reflections of journalists. This further underlines how the professional media is also a victim to this trend. The advertising revenues have moved first to websites, then on to platforms, leaving traditional media underfunded. The ubiquitous information access extinguished the subscription model’s viability except for a few leading newspapers. Preparation and fact-checking of meaningful informative news articles demands costly human resources and sound editorial judgements. When prominent social media platforms eliminate or reduce the ranking of edited content that is contributed by media service providers, the providers’ investments become futile. This loss harms not only media providers, but also the society as a whole, as fewer citizens have access to the range and depth of information that these media services strive to provide. Direct messages from politicians and influencers are quicker, sound more genuine, and hence interesting, for the audience. Reflections and context remain extra features for a handful of interested readers.

At the same time, online platforms reach more people than any media empire ever could. More than half of the market in all European Member States, and two-thirds of the digital advertising market in most countries were dominated by the top two online platforms in 2018-2019.Footnote 44 Facebook had 308 million daily users only in Europe in 2023 (largely stagnating since 2020).Footnote 45 This is incomparable to any media concentration on the traditional media market, where Japan’s Yomiori Shinbun has the largest subscriber base with approx. 10 million, followed by the Wall Street journal with 2.2 million subscribers. Even though this reach is not with a content offer, but with disseminating third-party content, however, the content ranking logic is applied by the same company. Currently, these content-ranking algorithms are not acknowledged as entailing editorial-like responsibility, although they define users’ exposure to content. As automated, self-learning algorithms, they could reasonably belong in the high-risk AI application category; however, this attention has been granted only to content-ranking algorithms that disseminate content intended to exert political influence.Footnote 46 As providers of a high-risk AI system, platforms would be obliged to give a detailed description of the algorithms’ elements and their developing process, such as their design specifications, general logic, the training data sets used, and how that data was obtained and selected, generally, significantly more information than what would be required from algorithms under either the DSA or the Code of Practice on Disinformation.

2.3 The role of content media

Disinformation is overwhelmingly disseminated by opaque networks of strategic dissemination which forge and spread disinformation, frequently involving pseudo-think-tanks, pseudo-NGOs or pseudo-media. While traditional media providers also occasionally spread disinformation or misinformation (i.e. unintentional disinformation), free and independent media providers are not interested in doing this, as disinformation undermines trust in professional journalism. However, captured or government-sponsored media enterprises have been found to systematically generate and disseminate disinformation. This, as any other instances when disinformation or propaganda are disseminated or supported by a government, has a significantly larger impact.

The result is a highly polluted information environment that makes it more difficult to encounter truth. Exactly this is the primary goal of disinformation operations: rather than persuade the population to believe a specific false fact, to instil distrust in public institutions, including the courts and the media; and to sow confusion to the extent that even true information is not trusted.Footnote 47 This generates an epistemic chaos within society, making basic values more vulnerable to challenge, fostering a sense of insecurity and offering easy answers for sale in pursuit of higher political gains. The parallel erosion of trust in democratic institutions paves the way for a shift towards an illiberal system.

However, the media is significantly more decentralised than the court system, and can vary greatly in many aspects, even in terms of independence. A robust and diverse media system offers pillars of epistemic security and helps bolster citizens’ resilience against disinformation, or more precisely: against the epistemic information chaos.

3 How to approach distrust in courts and in media

In both 2022 and 2023, 53% of EU citizens rated their national justice system as good,Footnote 48 roughly corresponding to the OECD’s survey results of 56% in 2022 (with the highest results in Finland and Denmark, 88 and 84%, and a standard deviation of 17-88%).Footnote 49 Trust in the European Court of Justice was measured at around 50%, with a standard deviation of 33-73%.Footnote 50 In Poland, trust in the judiciary in June 2019 was roughly at the same level as trust in government and parliament, and much lower than in the public administration and the regional and local public authorities (37% versus 47% and 56%).Footnote 51 In 2022, Eurostat measured 24% for Poland.Footnote 52

As seen, improving trust requires a complex effort: consistency of good performance and consistent demonstration of the proper functioning of the controlling mechanisms. As stated above, the judiciary and the media form part of those controlling mechanisms. Therefore, addressing the issue of trust in democracy may start with addressing issues of trust in courts and in the media.

3.1 Improving trust in the information environment

For courts, beside the organisational steps that ensure independence, the other qualities of trustworthiness - accountability and transparency - demand the cooperation of the media. However, the media system itself is struggling with trust issues due to the epistemic and existential crisis that the reordering of the information landscape created. The only effective way to achieve a change would be to induce a complex stabilisation of the information environment. In a vast and hyper-diverse pool of information, this could be started by creating islands of trust that consistently make verified, factchecked, objective and complete information accessible; in addition, by adding signposts for users to know where they find these secure islands. In some states, public service media is able to fulfil this role. This also applies to the various established research institutions, such as the decentralised network of the Health Authorities which emerged as a networked information oasis during the Covid-19 crisis.

However, a universally accepted and readily identifiable set of standards to discern reliable media content does not exist at present. Nevertheless, several projects are starting to emerge with this particular objective in mind. The Journalism Trust Initiative (JTI) aims to establish a standardised set of journalistic practices by adapting current ethical and professional norms of journalism. An ISO standard has been established by a consortium of international experts, enabling media outlets to conduct self-assessment and obtain certification. More than 100 media organisations throughout the world have implemented the JTI standard by releasing transparency reports. It has evolved into a machine-readable code, enabling algorithms to identify the information and enhance its exposure. Another proposal was put forward to promote the formation of networks among media service providers, where they collectively verify and evaluate each other’s quality through a continuous peer-review method. The trustworthiness label should function as a quality indicator for all network members. This would encourage the network members to engage in dynamic self-regulation.Footnote 53

The recent legislative package of the EU has addressed the recalibration of the information environment by addressing the platform economy, online services and media pluralism, as well as the transparency of political advertisements. The Digital Services Act (DSA) is a key component of this package, aiming to govern online platforms and services in order to guarantee adherence to standards of content moderation, user safety, and transparency. Simultaneously, the Digital Markets Act (DMA) has been introduced to address concerns over the monopolistic control of major online platforms, with an emphasis on promoting competition and fairness in the digital marketplace. The European Media Freedom Act (EMFA) [42] is intended to advance the freedom and pluralism of the media in the European Union. Among these legal instruments, this latter one is the most specific in the field of trust in media. Through addressing independence, accountability and transparency, it followed the pattern of establishing trust in other social systems. It attempted to create formal channels that allow scrutiny and discussion of issues that represent symptoms of distrust, or that lead to distrust themselves. The Board which operates as a discussion forum and the European Commission’s annual monitoring are such channels that release tension and allow public discourse over the reasons that led to the distrust.Footnote 54

3.2 Institutionalising distrust to achieve trust

Currently, media governance is marked by an intricate network of distrust. Typically, the media is expected to remain neutral and critical in relation to both economic and political actors, as well as the society it is meant to serve. However, this neutrality has become subject to doubt as media outlets are often intertwined with powerful political or economic actors. Alongside the internationalisation of the media environment, also the widespread use of internet platforms for sharing media material underscores the necessity to elevate the regulation of media to a supranational level. However, several Member States have encountered shortcomings in media freedom, pluralism, and other aspects of the rule of law, which have undermined mutual trust among Member States, calling for a further type of formalised control.

EMFA choose to address this generalised distrust by regulating each relationship between each of the involved actors, such as media providers, platform operators, Member States, and NRAs (National Regulatory Authorities). Besides imposing duties on all of them, EMFA also established consultation mechanisms as tools to channel the expressions of distrust into formalised discussions.

This is a new understanding of media independence: rather than further distancing it from state institutions, the distrust is institutionalised through the interconnected network of interactions. The result is a complex web of decentralised power structure that includes stakeholders, NRAs, the European Commission and experts. Like the system of checks and balances, a regulated and mutually controlled connection among the actors might lead to higher levels of trust in the long-term.

4 Summary

The reordering of the information landscape has broken up existing balances in the relationships of trust and political communication. The dissolution of the status quo is continuing in the global political scene where states compete with new methods to improve their global political position and new alliances are formed. This article analysed the nature and the various angles of social trust in the state bodies, including courts, and in the media. It has found that the fate of the media and of the judiciary are often shared in the context of populist political movements. Both are primary targets of illiberal regimes, as branches that assume control over the executive power. The media, via its reporting, and the courts, via their rulings, both serve as watchdogs of democracy, but they also share the responsibility of mutually supervising each other. As such, both the media and the courts have the potential to serve as pillars of trust in society. The media needs to regain strength in order to fulfil its watchdog role and scrutinise the entire system, including the courts. Courts may fulfil the objective of achieving fairness, independence, accountability, and transparency, thereby satisfying the rational aspects of trust and earning symbolic trust.Footnote 55

Before the current trust crisis can be solved, a new one is emerging: the use of artificial intelligence is penetrating all spheres of life, including the judiciary and the media. In spite of the landmark legal framework passed by the European Union (the AI Act), the trustworthiness of AI applications and trust in all products for which AI was used, is still an emerging field. Automated decision-making in public administration and the increasing reliance on AI in the judiciary are raising fresh challenges towards trust in the judiciary, both at the symbolic and at the rational level. Applying AI tools for generating or assessing evidence in a court procedure will require a range of distinctly regulated steps, from the design phase, through training, to deployment. Beyond the technological attestations, legal validation will also be required to approve the use of AI for the specific procedure.Footnote 56 As a rational element of trust, explanations on how the automated decision was reached must be delivered with the result.Footnote 57 For the judiciary, explainability is an indispensable feature which is part of the procedural fairness, which is part of trustworthiness.Footnote 58

In the field of media, we can count on being unable to distinguish fake content from the original. Not only is fake content becoming more professional, genuine content providers also take avail of the enhancing features of generative AI. To believe perceived content, new anchors of trust will be required. However, it is bound to take some time before the new standards for trustworthiness are established and widely acknowledged, as trust is a relationship that develops through consistent reinforcement.