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Should judges use social media? 

31 Mar 2021

  • From unequivocal 'No' to qualified 'Yes' 

  Even though opinions on the question of the Judiciary’s engagement with social media rightfully stress on the possibilities of misconduct, which may be inadvertent or otherwise, risk mitigation is possible with judicial policy and training, which emphasise on understanding the risks involved in engagement with social media.  These observations were made in an article that explored the relationship between social media and the Judiciary, and in particular the use of social media by judges, titled “‘Social’ Justice?” authored by retired Indian Supreme Court (SC) Judge, Justice Madan Bhimarao Lokur and Indian Advocate Rupam Sharma, and published by the Sri Lanka Judges’ Institute in the Judges Journal Volume VI of December last year. Justice Lokur and Sharma note the impossibility of the Judiciary’s complete alienation from social media, citing the cases of the social media popularity of the late US SC Associate Justice Ruth Bader Ginsburg, the launch of Twitter and Instagram accounts by the UK SC (Courts in Australia and New Zealand also operate institutional social media accounts).  They also point to the recent conviction of Lawyer Prashant Bhushan by the Indian SC (exercising its inherent jurisdiction in entertaining a suo motu [on its own motion] contempt petition) for criminal contempt over his tweets. One of these alleged of the role played by the Indian SC and certain Chief Justices (CJs) in the destruction of democracy in India, and in another, in which he posted a photograph of India’s sitting CJ Sharad Arvind Bobde, he accused the CJ of riding a 50-lakh Harley Davidson motorcycle belonging to a Bharatiya Janata Party Leader, without wearing a face mask and a helmet, at a time when he was keeping the SC in lockdown mode, thereby denying citizens their fundamental right to access justice.  Explaining further on judicial adaptation in light of such, the duo observe however, that “the Judiciary often finds itself revisiting the tenets of its purpose when faced with questions on social media adaptation. Any course of action would depend on the Judiciary’s understanding of itself and its role in the State. Does it ‘serve’ the people, or does it dispense ‘justice’? Why can it not be both?” They continue to note: “In fact, can it be any other way than an interweaving of the two, especially in welfare States aspiring for access to justice? The intricacy faced by judges in particular, takes the form of indefinable yet foundational principles such as ‘integrity’, ‘independence’ and a stride beyond actual justice towards ensuring the ‘appearance of justice’. Added to this is the double-edged sword of social media, if ever there was one.” An internationally recognised baseline for the purposes of this discourse is provided for in the Bangalore Principles of Judicial Conduct of 2002, which is a model code of conduct for judicial officers that codifies standards of ethical conduct for judges based on the core guiding values of independence, impartiality, integrity (includes moral authority), propriety, equality, and competence and diligence.  This is also in acknowledgment of the indispensability of the administration of justice for the realisation of constitutionalism and the rule of law. The Bangalore Principles supplemented the United Nations (UN) Basic Principles on the Independence of the Judiciary (1985). As borne by the Bangalore Principles, judges, like any other citizen, are entitled to the freedoms of expression, belief, association and assembly (Principle 4.6.).  The 2007 Commentary on the Bangalore Principles, in paragraphs 31 and 32, states thus: “While a judge is required to maintain a form of life and conduct more severe and restricted than that of other people, it would be unreasonable to expect him/her to retreat from public life altogether into a wholly private life centred on home, family and friends. The complete isolation of a judge from the community in which the judge lives is neither possible nor beneficial. A judge is not merely enriched by knowledge of the real world; the nature of modern law requires that a judge live, breathe, think, and partake of opinions in that world. A judge who is out of touch is less likely to be effective.” Jurisdictions, the authors further observe, are at varying stages of experience in respect of the use of social media by judicial officers, and the impact of social media on judiciaries. This difference, they explain, is a result of factors which would inter alia include stipulations in the national code of conduct for judges (or lack thereof), the method of appointment of judges, the perception of the role of the Judiciary in a legal system, the organisation of the legal framework, Constitutional safeguards such as the freedom of speech and expression and Constitutionally envisaged restrictions on such freedoms, actual access to the Internet, and the availability of all its prospects, depending on the consequences of national or regional Internet regulatory mechanisms.  In terms of the bearing of social media on the Judiciary, firstly, there is the impact of what people say about judges on social media; secondly, the institutional and individual engagement of the Judiciary on social media; and thirdly, new issues of law arising out of social media. Justice Lokur and Sharma note that concern has been expressed in varying degrees concerning the “trolling” of judges on social media. In 2019, the UK SC’s then-President Lady Brenda Marjorie Hale and then-Deputy President Lord Robert John Reed (later UK SC President), stated before the House of Lords Select Committee on the Constitution that personal Twitter or Instagram accounts are avoided by judges to prevent extremely hurtful comments that may not always be easy to shrug off, the fear of possible consequent biases, and the difficulty of controlling content once uploaded.  The Committee was also informed that the institutional accounts (the official accounts of the UK SC on social media platforms) are accessed by people a lot, and usually have news (including photographs of judges engaging in extracurricular activities), rather than comments. Regarding comments, there have been instances of outrageous media headlines targeting the three High Court (HC) Judges after their decision on the invocation of Article 50, Treaty on the European Union (EU) (Brexit) in the case of R (Miller) vs. Secretary of State for Exiting the EU (2016). One media headline described by the authors as outrageous in relation to the latter case, included “Branded 'enemies of the people' over Brexit case, senior UK Judges hit back”.  Similar headlines and posts, the writers note, appeared on social media, against the UK SC Judges and Lawyers after the Court’s decision on the prorogation of Parliament in the case of R (on the application of Miller) (Appellant) vs. The Prime Minister (Respondent) (2019). An applicable media headline in the latter case was “Leave.EU dubs SC Lawyers ‘Enemies of the People”. Justice Lokur and Sharma noted that such personal attacks were identified as one of the reasons behind the decreasing morale among judges and dwindling applications for judicial appointments.   On similar lines, the researchers add, the India’s incumbent CJ Arvind Bobde, had reportedly stated in 2019 that some judges are harassed by unrestrained criticism on social media, and that criticising a judge instead of her judgment is defamatory.  This, the authors pointed out, has raised the issue of distinction between criticism and abuse, which they observe, has traditionally struggled to find a balance. Further, they elaborated that the issue’s subjectivity, the resultant uncertainty, and the probabilities of the extreme precedents of either the chilling of free speech, or the targeting of judicial officers increase when social media forms a part of the equation.  Perception on social media, Justice Lokur and Sharma state, also presents itself as one of the main concerns when judges engage in social media in their personal capacity. On institutional engagements, specifically when courts operate institutional social media accounts, the duo emphasise that this increases the ease of access for the public, and brings the Judiciary closer to the people. Thereby, on the one hand, this assists in furthering the public’s understanding of the court’s functions and the judicial office. On the other, this may prove to be instrumental in countering misinformation and disinformation. Therefore, with control over its own narrative, this may – through the official reportage of facts and not comments or reactions to criticisms – prove to be an antidote to the problem.  However, Justice Lokur and Sharma point out that if a court were to opt for such an engagement, it would need a dedicated, trained, and appropriately and periodically briefed communications team with clear policy guidelines at its base. On the thorny issue of individual engagements, specifically whether judges can have social media accounts, the duo noted thus: “Unanimity has been most difficult to achieve in this regard. Not only do diametrically opposite views exist on this question, there has also been a struggle in levelling the field within the same school of thought. For instance, the use of social media by judges in their personal capacity as opposed to professional capacity and questions of bias arising from social media connections are issues which remain highly contentious.” In 2010, the Indian SC took action against a State HC Judge for judicial indiscipline. While the Judge was calling for judicial accountability and had previously raised issues of transparency in the Judiciary, a blog post by him had termed the CJ of India “a serpent without fangs”. There have been, they note, other instances of reprimands to social media friendships between judicial officers and lawyers, such as reportedly by the Jammu and Kashmir HC CJ. “Most judges in India have stayed off social media,” the duo further note. Elsewhere however, in the US, regarding social media and judicial ethics, the issues that have come under discussion include social media friendships between attorneys and judges, disqualification and disclosure, ex-parte communications and independent investigations using social media, comments on pending cases, and off-bench conduct that undermines the appearance of justice, such as commenting on issues, abusing the prestige of the judicial office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign-related conduct.  According to Justice Lokur and Sharma, there are certain predictable issues that arise from the use of social media by judges. In this regard, they cited the Wisconsin State SC affirming the reversal of the trial Court’s order in a custody case on the grounds of a Facebook-related connection, and interactions between the Judge and the mother during the proceedings that were not disclosed to the opposite party (In re Paternity of B.J.M.). In this regard the Florida State SC found no legally tenable grounds for disqualification in the event of a Facebook friendship between the Judge and the lawyer appearing before the Judge (Law Offices of Herssein and Herssein vs. United Services Automobile Association). Actions of judges on social media, the authors note, have found themselves being assessed for judicial indiscipline, with the issuance of letters of dismissal and/or caution, or public reprimands by State Commissions on Judicial Conduct on many occasions. In the matter concerning then-Judge Steve Urie, the State of Arizona Commission on Judicial Conduct publicly reprimanded Urie for his “appearance of impropriety” and for "diminishing public confidence in the Judiciary" when he had posted an entire Courtroom exchange with a litigant on his Facebook page, and commented in reply to one of his Facebook friends that “the tenant (litigant) wasn’t the brightest bulb in the chandelier”.  Also, in matters such as that concerning the Kern County Superior Court’s then-Commissioner Joseph J. Gianquinto, the California Commission on Judicial Performance, among others, found more severe violations of the code of ethics by judicial officers, such as posts and re-posts on public Facebook pages, which reflected, among other things, anti-Muslim/immigration/Native American/gay marriage and transgender/liberal/Democrat/black sentiments, opposition to then-Presidential candidate Hillary Clinton, accusations against then-President Barack Obama, a lack of respect for the Federal justice system, and contempt for the poor. Justice Lokur and Sharma explain that all these aforementioned social media actions by judicial office holders were prima facie misdemeanours.  However, there have been, as per the researching duo, occasions of seemingly insignificant acts by judges and even jurors, such as friend-ing, following, liking, sharing by tweeting, blogging, posting, upending judicial deliberations, and reopening concluded disputes. They cited the case where the proceedings for damages initiated before State and Federal Courts in 2009 for the destruction of 65,000 acres of forest in North California in 2007, which though denied cert (not granted the writ of certiorari) by the US SC in 2018, became the subject of a writ before the US SC, because of a tweeting Judge.  Justice Lokur and Sharma noted that judges in these instances could be held accountable and made answerable for their specific actions because codes of conduct existed, and discussions and advisory opinions on what not to do have commenced and are being continuously reassessed as new experiences surface. Moreover, the legal researchers added that in addition to the exercise of extraordinary care, necessitated for strict adherence to judicial ethics, judicial officers who chose to engage individually on social media will have to acknowledge the possibilities of cyberbullying and inadvertent misconduct attracting sanctions, and therefore train to eliminate and/or identify possible impacts on the performance of duties due to the various consequences resulting from engagement on social media. However, they observe: “In a normative or policy vacuum, the enforcement of judicial discipline in the context of engagement with social media would be a challenge. For legal systems which might view a complete embargo on judges using social media as the simplest and most efficient solution to myriad complexities posed by the question, it is still not too late to realise that blanket bans cannot be a norm for much longer.  “Effects of a connected world are already being felt, as judgments are available for a wider readership including judges from other legal systems, and the vast disproportion in the numbers of casual courtroom tweeters to official court reporters. Judges engaging with social media, even if strongly believed to be injudicious at present, is inevitable as complete alienation from use of a media directly and pervasively impacting almost half of the world’s population is an impossibility.  “Another facet, that is, contemporary issues of law, is a crucial consideration for jurisdictions still contemplating an absolute 'No'. Conventional substantive as well as procedural legal concepts such as defamation, contempt, national security, law and order, evidence, jurisdiction and cause of action, have gained new dimensions due to social media.  “Novel issues of law, such as social media’s moderation of or restrictions on content and the freedom of speech, intermediary liabilities, data protection, Internet freedoms, surveillance and regulations, have also arisen from the use of the Internet in general and social media in particular. Therefore, the answer to the question ‘should judges use social media?’ cannot be an unequivocal 'No' or an unqualified 'Yes'.  “The answer lies in defining and establishing clear benchmarks qualifying the 'Yes', much like the exercise of the balancing of rights and interests undertaken by almost all Judiciaries. In this regard, existing globally accepted principles of judicial conduct present foundational guides, and with due reflections, calibrations and domestic contextualisation, can evolve into an answer for the question under consideration”.  The Declaration on Judicial Integrity at the launch of the Global Judicial Integrity Network in 2018 professed to “work together, as appropriate, to develop guidance materials and other knowledge products to help our Judiciaries to address new challenges to judicial integrity and independence, including those created by the emergence of new information technology tools and social media”.  As the UN Office on Drugs and Crime (ODC) Discussion Guide reflects, once a qualified “Yes” is accepted, issues such as social media friendships, questions of identification as a judicial officer on social media platforms, the actual form of engagement on social media (the nature of the social media platform, the nature of content, etc.), training, the extension of some norms and training to family and friends, and privacy concerns can be examined for specific national guidelines.  The UNODC non-binding guidelines on social media stemming from the Expert Group Meetings on the Use of Social Media elaborate on these issues where training that is permanent, continuous, and attempted electronically, along with the development of confidential resources for direction and advice, is endorsed for understanding potential risks, and how certain usual and accepted social media usage and practices can violate judicial codes of ethics, irrespective of the personal use of social media. Practical guidelines have also been framed by the Central and Eastern European Law Initiative (CEELI) Institute in Prague, Czech Republic, which commends the benefits of the use of social media or at least an awareness of its uses among judges. These guidelines prescribe recommendations and provide quick tips on the management of Internet activities, on the theoretical context, on privacy and security, a list of national and international opinions, regulations and standards related to social media.  The CEELI Institute's recommendations include representing the Judiciary well in all social media content, never commenting on pending cases, not using the social media to investigate parties, minding whom you “friend” and what or whom you “like”, avoiding political and commercial comments, adjusting and monitoring one's online visibility, protecting one's personal data, (the latter two recommendations deal with more accessible personal information), educating one's family and friends, using the social media to educate the public and continuing to educate oneself about social media.


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