Canadian Judicial Council Guidelines on Social Media Use – an Important First Step

The Canadian Judicial Council (CJC) has issued ethical guidelines for judges on the use of social media. These guidelines could be a useful template for updating or expanding codes of ethics for tribunal members. In this column I identify some of the key parts of the guidelines as well as some of the shortcomings.

The CJC defines social media, using the Oxford English Dictionary definition as its foundation:

 … social media is defined as “websites and applications which enable users to [access], create and share content or to participate in social networking.” This definition encompasses a wide variety of tools, which are used for a range of purposes, such as staying in touch with family and friends, reading news, publicizing one’s opinions, and connecting with communities that share one’s interests. There are also different levels of engagement possible on social media. Depending on the platform, users can choose to simply passively view content posted by others or can be more active by, for example, sending direct messages or posting their own text, pictures, and videos.

In the guidelines, the CJC acknowledges the work done by the Conseil de la magistrature du Québec, in its 2022 guidance to judges on social media use.

The CJC recognizes that social media is everywhere and cannot be ignored. While recognizing that judges will be on social media, the guidelines emphasize the need for judges to use it cautiously, always mindful of the impact on public confidence in the judiciary and the principles of independence, integrity, impartiality, and equality.

The guidelines state that before using or continuing to use a social media platform, judges should first consider whether the platform “conveys values or raises concerns that are clearly inconsistent with the principles that define the judicial role” and then “ensure that they understand how the platform functions, including its security and privacy features” (guideline 3). As a general statement there is not much to disagree with – however, whether a platform “conveys values … that are clearly inconsistent with the judicial role” could be difficult to identify. People have conflicting views on “X” (formerly Twitter) for example.

The CJC guidelines recommend that a judge review social media accounts when they are first appointed, and “consider whether the fact of their participation on a social media platform and/or any content or contacts associated with their account(s) could undermine public confidence in their work as a judge or in the judiciary as a whole.” It is not clear from this guideline whether the recommendation is forward looking – simply ending an online presence – or backward looking – deleting an account and its content. It is close to impossible to eliminate evidence of past social media use, as has been discovered recently by the now former Chief Commissioner of the Canadian Human Rights Commission.

There is an important distinction to be made between personal use of social media and professional use. The CJC guidelines do not sufficiently differentiate these two separate uses of social media. The guidelines note the benefits of social media use as public education and judicial community building, yet also provides the following guidance:

The use of a judicial title and inclusion of information identifying a judge’s judicial role on social media should be avoided in most circumstances.

If a judge is using social media for public education or judicial community building, you would think that information on their judicial role would be justified.

The guidelines offer guidance on social connections that is not that helpful: “Judges should be particularly careful about virtual connections with parties, counsel or witnesses in cases before them, which may raise perceptions of partiality, and require corrective measures.”

Without specifying the nature of those connections, the guidance is useless. There are differences between social connections on Facebook, for example, and connections on LinkedIn. A Facebook “friend” implies a social relationship that would raise concerns about partiality and could lead to bias allegations. A connection on LinkedIn is more likely (although not always) a professional relationship. Many lawyers who become judges will have lawyers as connections who they have only interacted with professionally. Do those “legacy” connections pose any concerns? It is clear to me that once appointed, caution needs to be exercised in accepting connection requests on LinkedIn and in initiating connection requests.

The guidelines are also weak in identifying the nuances of social media posting – “liking” or using other types of emojis in response to someone’s post can be just as harmful to impartiality as a post from the judge.

“Tell me your company, and I will tell you what you are” – Cervantes, from Don Quixote, quoting a proverb.

The guidelines state that if a judge “discovers that a social media connection has posted content that could reflect negatively on the integrity of the judge or their court…the judge should consider removing or blocking that connection, if technically possible.” Monitoring individual posts requires a level of vigilance that is not sustainable for a busy decision-maker. Better guidance might be to “unfriend” those with consistent toxic or negative comments.

The CJC guidelines highlight the importance of being aware of privacy and security risks of using social media. Its focus is primarily on physical security:

A judge should be aware of the possible security risks associated with their use of social media, as well as social media use by their friends and family. A judge should generally refrain from posting information considered to be highly confidential on social media, such as their home address, email address or telephone numbers and should ask friends and family not to share this type of information on social media. A judge should also be cautious when publishing other types of content, such as, for example, photos or videos showing or identifying the judge in a purely personal context or which could allow for the identification of the judge’s location or their family’s location. A judge should be mindful of the increasing ability of internet users to connect discrete pieces of online information to develop a detailed, personal profile of a person.

This is excellent guidance for tribunal members – who, traditionally, have less security protections than judges. There are also the risks associated with identity theft. It still surprises me that people make their birthdate available to the general public when that date is an important piece of a person’s identity.

The CJC guidelines also recommend ongoing education about social media and its risks. The methods of combating the risks of social media should be part of the ongoing training plan for all tribunals.

Although I have been critical of parts of this guidance document, it is an important first step in setting out what judges should be thinking about if they want to continue using social media. With some adaptations, these guidelines could also be incorporated into existing ethical codes for tribunal members or as a standalone guide.