One of the themes the Canadian Judicial Council has identified as part of its review of its Ethical Principles for Judges is judges’ use of social media. This is an etirely new area since the release of the current Principles 20 years ago and it has rapidly become a complex and sometimes dangerous area to navigate. Tempting though it might be to tell judges that they cannot use social media, this would be fruitless. Better to incorporate training for judges about its use, clear limits about subject areas and guidelines about the risks into judges’ initial education sessions, which should be earlier than they may be now, and ensuring regular updates about how social media evolves.
The United Nations Office on Drugs and Crime (UNODC) Doha Declaration’s November 2018 Social media, a challenging new platform for judges around the world, succinctly summarizes the “two sides” to social media use:
Most judges understand well the positive aspects social media platforms can bring, such as openness, closeness to society, and the potential to spread the reach of their expertise and increase the public’s understanding of the law. On the other hand, negative aspects stem from both what judges decide to post and from what judges may be subjected to on a specific medium, such as misrepresentation or misinterpretation of their posts, or even cyber bullying and threats to privacy and safety.
The Global Judicial Integrity Network of the UNODC is developing a final draft of guidelines for consideration in November 2019.
The use of social media is ubiquitous, whether Twitter, Facebook, blogs or other platforms, and many current judges may use it in their private lives. Increasingly, potential judges may be communicating through social media in their professional lives, and here they may be guided by particular asumptions about proper use. For some people prior to appointment to the bench, social media, such as Twitter, may be a way through which they can communicate strong opinions; they have no reason not to express their views and may even believe they should. This may be true of academics in particular; they will also have written books and articles and made presentations about controversial issues, as they should. (The extent to which their conduct as far as books and articles should be reined in upon judicial appointment is a subject for another day.) In any event, the judicial social media world may well be far different from that to which they have become accustomed.
A study undertaken in 2013 by The Canadian Centre for Court Technology showed that the use of social media by judicial officers (judges and tribunal members) has increased considerably over the previous 15 or so years (“Respondents were invited to estimate the year in which they started using social media in a personal or professional capacity.”): 5% of respondents said they started using social media personally in 2004, up to 48% in 2013, while 3% started using it professionally in 2004, up to 25% in 2013. (The CCCT’s paper, The Use of Social Media by Canadian Judicial Officers, is more broadly a helpful overview of views and practices relating to judicial use of social media as of 2015.)
I am limiting my comments here to individual judges. Courts now have “institutional” social media accounts, which they use for various purposes, but often to release judgements and announce presentations by judges, for example. The BC Provincial Court (@BCProvCt) has a lively Twitter account it uses rather cleverly to attract people to read decisions, among many other uses. The Supreme Court of Canada’s account (@SCC_eng) is somewhat more staid. And courts may also be on Facebook. As far as the courts as institutions go, the die has been cast. In the United States and elsewhere, individual judges have Twitter accounts (Justice Brett Kavanagh, for example, appears to favour retweets, often positive comments about himelf or videos of him with President Trump at the State of the Union). Chief justices in other countries have their own Twitter accounts.
One of the significant risks in the use of social media, unless used cautiously, is that it can arise in claims that judges have not been impartial, have breached other ethical principles or have generally acted in a way unbecoming a judge. As Dimitra Blitsa, Ioannis Papathanasiou and Maria Salmanli put it in “Judges and Social Media: Managing the Risks” “Social networking carries with it the potential for creating ethical minefields which in several
instances may even lead to disciplinary proceedings.” (It is worth noting that the 3 examples the authors provide are judges whose use of social media was incautious, to say the least, but the general concern remains.)
Social meda connections that seem when initially made to be acceptable may in fact lead to problems in the future. Justice Steven Rares of the Federal Court of Australia spoke at length about the use of social media at a young lawyers conference in 2017, discussing how courts and judges might use social media and the issues raising concern. (Social Media – Challenges for Lawyers and the Courts, Australian Young Lawyers’ Conference, October 2017) Among other issues, he noted the following that could result from a judge using social media even in a personal capacity:
In particular, judges must consider how engaging with social media will not only affect, but may be perceived to affect, their judicial role. Should judges make connections publicly, or at all, through social media with members of the legal profession, including those who are close friends? Can such connections create possible issues of actual or perceived bias, require disclosure or lead to disqualification, especially if the person with whom the connection occurs is counsel or a partner or employee of a law firm acting in proceedings before the judge?
However, the idea that judges might not be “friends” with a lawyer on social media has something in common with being friends in real life and raises some of the same issues, even though the “friendships” on social media may be more easily identified by those who wish to claim it as a reason to claim bias. Thus factors such as whether the lawyer is an acquaintance or a real friend and exchanges they may have had through the platform, need to be considered in whether the appearance raises a problem.
The deputy president of the UK Supreme Court, Lord Reed, has explained how careful judges must be in their personal lives: “If you post on it a photograph from a family wedding or something and you’re standing with a glass of champagne and a smile on your face, you know how that will be used to illustrate a story.” Judges who use social media in their personal lives do not have the same freedom as others, but, however, outspoken and provocative they might have been before appointment, do need to keep in mind the protocols that govern them in their judicial capacity.
Perhaps more difficult than ensuring that judges’ use of social media does not cross the line, whether they are using it in their professional or personal capacity, are the concerns that the use of social media by judges’ families (or possibly friends) can raise. The Australasian Institute of Judicial Administration points out in its Guide to Judicial Conduct (Third Edition) that “members of the public may assume that material emanating from a member of a judge’s family or from court staff is attributable to the judge, or reflects the judge’s views. Like a judge, members of the judge’s family should be alert to the possibility of a connection through social media with someone involved in a case before the judge.“ I mentioned above that being “friends” on social media with a lawyer appearing in the judge’s court may raise a claim of bias, but that depending on the circumstances, it may not be a real problem. However, it may be that members of the judge’s family are friends with the lawyer, making a harder case.
There is one aspect of accessing social media (that is, a judge does not tweet, but accesses Twitter or Facebook) that can also raise concerns that are perhaps unavoidable, unless the judges ignores social media completely (and this, a form of isolation, is not generally viewed as a good thing). A judge may inadvertently come across on social media reference to a trial or case before him or her. It is unrealistic to expect that judges will avoid social media, but, difficult though it may be, they should avoid bringing what they learn there into the courtroom. Having said that, Justice Rares provides an example of a judge in England who changed the sentences of two brothers after she read what they had posted on Facebook; she had believed that they had been remorseful and sentenced them to suspended sentences, but realized through their posts that they were not (and one brother insulted her). She brought them back to court and sentenced them to imprisonment. Judges should not be undertaking their own research into a case and to the extent they become aware of something not raised by the parties, they should seek submissions on it. The same is true of anything learned on social media about the case. The CCCT paper provides some examples of judges whose extra internet searching led to claims (and findings) of lack of impartiality.
Dimitra Blitsa, Ioannis Papathanasiou and Maria Salmanli conclude in “Judges and Social Media: Managing the Risks“, “Informing members of the judiciary of the unique perils that communication through social media entails, increasing familiarity through training (e.g. SNSs workshops, case briefing and discussion) and establishing bright-line rules that reflect the common understanding of social media are critical for maintaining judicial impartiality and integrity.”
The Australasian Institute of Judicial Administration’s Guide does not restrict use of social media in a “bright line” sense. Rather, it cautions judges about the unintended consequences of using social media: “a judge should consider the content of any interaction using social media, the possible dissemination of the content without the knowledge of the judge, and the possible disclosure of the judge’s connection with the material.” The judge’s interaction with social media (such as accessing a blog) may become public, even if the judge has done so “anonymously”. The Guide suggests that being careful about privacy settings might be inadequate in case they are changed without his or her knowledge. And, of course, once comments appear on social media, they will be there forever and even efforts to delete them will not be wholly successful.
Judges, even if permitted to use social media, may choose not to do so. Recently, the Irish News reported that president of the UK Supreme Court, Baroness Hale of Richmond, said that comments on social media can be “extremely hurtful” and that some judges avoid social media for that reason, although “justices were encouraged to ‘supply pictures of our extra curricular activities’ to the UK Supreme Court’s Instagram account, adding that content from lectures and meetings seemed to ‘go down very well’”. One might note that since judges are able to engage in these “extracurricular activities” (such as teaching a law school course, presenting at conferences, sitting on a law reform commission board or chairing an inquiry, for example), their use of social media in those capacities should be undertaken from their perspective as a judge and not, for example, from their perspective as a member of the faculty, and thus more restrictive than others in similar positions who are not judges (who may have their own restrictions, of course).
The use of social media should be an element in new judges’ education, as early as possible, as well as for existing judges. Guidelines from the CJC that recognize that judges may use social media in their professional capacity, as well as personally, but make clear the risks and limitations of use, are crucial. For example, if judges do use social media, they should not identify themselves as judges; they should consider very carefully whether it is appropriate to identify lawyers as “friends”; they need to appreciate fully issues around privacy; they need to acknowledge that lawyers have an obligation, even if not explicitly identified, to use what they learn on social media in representing their client; they should be aware that social media can intrude in their private life to haunt them in their professional life; they should discuss with their families how their use of social media might have repercussions; and so on. The guidelines should indicate the kinds of posts that are acceptable and those that are not. Individual courts may also estabish their own codes for accessing or using social media. And generally, the best guideline of all (after the training session has occurred, and definitely before then) may be: if you’re not sure, don’t do it.