“World Bank Conference: Ethical Concerns about the Use of Social Media by Judges” by Justice Lynne Leitch

November 5, 2019 | Monumental societal shifts have significantly impacted the nature of judicial work and created new challenges to the rule of law. They have also raised questions and created questions about the ethical responsibilities of judges in relation to their use of social media.

Judges must understand and become comfortable with social media to fulfill our judicial duties. We have no choice.

To quote from a report of a Canadian law professor:

“It is clear from many judgments that some judges have never stepped foot on social media platforms. Judges should walk the streets of the communities in which they are adjudicating. In addition to more judicial education, digital immersion is key. Judges should sign up for a social media account and explore their interests within the bounds of appropriate judicial conduct”. 

It is clear that judges need more education and guidance to be aware of the world we now live and work in and to understand the bounds of appropriate judicial conduct.

Ethical guidelines, like the Bangalore principles, clearly state our obligations in relation to the maintenance of public confidence, moral authority, integrity and dignity of the judicial office but they “provide little insight” in the digital age. 

Here are some examples where the use of social media by judges has raised ethical issues. 

Judges have been asked to recuse themselves based on the fact that they are a Facebook friend of a Crown prosecutor.

A trial judge was strongly criticized on appeal because he conducted a Google search in relation to an accused during the course of the trial.

Judges who use social media will have, or will create, what is referred to in some literature as “digital baggage”.

In Canada each applicant for a federal judicial appointment must respond to the question: “Is there anything in your past or present which could reflect negatively on yourself or the judiciary?”

We are facing a new frontier – that is why the challenges and practices on the use of social media by judges was identified as one of the priority areas for the work of the Global Judicial Integrity Network.

The Network, launched in April 2018, implements Article 11 of the United Nations Convention against Corruption as well as the 2015 Doha Declaration adopted by the 13th United Nations Crime Prevention and Criminal Justice Congress.

The network, which all judges and judiciaries are invited to participate in, is a platform to provide assistance to judicial officers in strengthening judicial integrity and preventing corruption in the justice system.

Significant research and collaborative discussions led to the creation of the social media guidelines.

A discussion guide was created reflecting comprehensive research from around the world on existing guidelines, decisions and legal opinions.

An expert group meeting was convened – participants were from around the world and identified key issues and discussed existing practices – very widespread and varied perspectives were shared.

We ultimately created draft guidelines to address ethical concerns. 

Then through the network, there was online public consultation over a 3-month period.

The guidelines were then updated and are now posted on the network website www.unodc.org//ji.

The guidelines are, as their title states, non-binding guidelines on the use of social media by judges.

Judges should also be guided by broader ethical principles such as the Bangalore principles. These broader principles apply to a judge’s digital life.

But these guidelines in relation to the use of social media are useful and important because the Bangalore principles, not surprisingly, makes no reference to social media because it did not exist when those principles were created.

The guidelines address the main ethical concerns relating to judges’ use of social media.

They outline the risks, but also the opportunities, in judges’ awareness and use of social media.

The guidelines state that judges should be involved in the communities they serve but such engagement must be balanced with judicial obligations (the need to maintain public confidence and the integrity and independence of the judicial system).

Judges must have a general knowledge of social media regardless of whether they use it or not and if judges do use social media they must be aware that in doing so a widespread audience is reached and a more permanent record than intended is created.

Judges should avoid doing anything online that can potentially undermine judicial independence, integrity, propriety, impartiality, the right to a fair trial or public confidence in the judiciary.

Judges should know about the security and privacy policies, rules, and settings of the social media platforms they use, periodically review them.

Judges should be aware of the risks and propriety of sharing personal information on social media. 

Importantly also, judges should be aware that even if they are not active social media users, privacy and security risks may arise from the use of social media by their family members, close friends, court personnel.

The Judicial Integrity Team and the Global Judicial Integrity Network can be contacted on twitter, via email or through its website.

Please consider registering on the network and accessing the guidelines: unodc-judicialintegrity@un.org, www.unodc.org/ji, unodc.org/dohadeclaration, Twitter: @DohaDeclaration.

This blog post was prepared by Justice Lynne Leitch, Global Judicial Integrity Network, Advisory Board Member.   The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.