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By Anurag Bana and Merle Balki

Technology has ensured that we live in a constantly connected world. Every moment can be cap tured, saved and shared through innovative apps like Facebook, Twitter, Instagram, LinkedIn, WhatsApp et al with just one click. Smartphones and better connectivity have revolutionised the way we share information, communicate and make decisions. With over seven billion mobile subscriptions worldwide and over three million people using social media to share opinions, photos and videos, constant participation and updates have found their way into almost every sphere of life—professional and personal.

There is no denying the reach of social media and the opportunities it presents for judges and lawyers to stay connected with the community they serve in. Within the judicial system, many judges and legal professionals have started to use these applications actively. In the US, a Texan Supreme Court judge uses Twitter to share a mix of family outings and political commentary, with a community of 1,03,000 people keeping track of his profile. In England and Scotland, similar profiles are used to update the public on the work of judges and magistrates continuously. A High Court judge in England recently used Twitter to make a direct appeal to urge a woman who disappeared with her three-year-old son to return home.

However, there are also risks and challenges inherent in the use of social media by the judiciary, which highlight issues of ethics and integrity. Active use of social media platforms as well as indirect engagement can both impact and have severe consequences for the individual involved.

For instance, active usage can lead to questions of ethics and integrity of the judiciary. A Kentucky judge got disqualified because he “liked” a political campaign post on Facebook, which was perceived as political endorsement. In 2019, a New York judge was disbarred for posting a picture of a noose on Face­book. The State of New York Commission on Judicial Conduct (via their written complaint against him) found that the judge had failed to act in a manner that promoted public confidence in the integrity and impartiality of the judiciary. In another case, a Wisconsin judge became the Facebook Friend of a woman whose child custody case he was presiding over. The Wisconsin appeals court ordered the custody case to proceed before a different judge because the Facebook friendship could effect bias.

Remarks and quotes from the public can put pressure on judges, and media trials have become commonplace. Judges need to be aware of how they are perceived on social media. This is not based only on their active use of social media, but also on what information they receive and from whom.

Chief Justice of India SA Bobde recently expressed concern about the harassment judges receive on social media. Additional Solicitor General of India Madhavi Divan stated that “judges can be put under pressure because they are as human as anybody else”. Lord Chief Justice of England and Wales Sir Ian Burnett even stated: “There have been a number of very highly publicised cases in recent years where individual judges have been put under intolerable pressure from abuse.”

A case not yet taken up by the court  but already discussed online by the public could have an influence on how a judge decides it. And as mentioned before, even if an individual does not use social media actively, it is nearly impossible to escape the increasingly connected online universe.

The interconnectedness of platforms and their potential to enhance work productivity makes them more prevalent and not opt-out options. For example, Skype and Linked­In are owned by Microsoft; Instagram and WhatsApp by Facebook and YouTube and Gmail by Google-linked apps are a common practice. Once signed into one platform or one email provider, data and services can be shared through linked third party applications.

These challenges are here to stay, with upcoming generations growing up with a permanent social media presence. Therefore, focusing on guidelines and principles to ensure integrity and ethics is of the highest priority for an impartial judiciary. This was acknowledged by the International Bar Asso­ciation (IBA) in 2014 and endorsed by the United Nations Office on Drugs and Crime (UNODC) in 2019.

In 2014, the IBA’s Legal Policy and Research Unit (LPRU) published its International Principles on Social Media Conduct for the Legal Profession. These Principles address both the opp­ortunities and risks that legal professionals should be aware of when using social media. However, given the fast pace of technological development, LPRU is updating these Principles to reflect current trends and suggest im­plementation mechanisms.

UNODC also embarked on the development of Non-Binding Guidelines on the Use of Social Media by judges. In November 2019, this was launched at the annual Law, Justice and Development Week hosted by the World Bank in Washington.

These Guidelines illustrate the pros and cons of the use of social media and provide guidance and training frameworks which are consistent with international and regional standards of judicial conduct and ethics. The Guidelines cover a broad range of topics—risks and opportunities in judges’ awareness and use of social media, judges’ identification on social media, content and behaviour on social media, friendships and relationships online, privacy and security policies and training.

IBA Principles and UNODC Guidelines address the need for the legal profession and the judiciary to have a framework to regulate and guide social media engagement. However, for effective implementation by different judiciaries, there is a need for training, capacity building and regular updating. Therefore, together with UNODC, IBA is working to create awareness through seminars across the globe. IBA is also creating modules for dynamic training for different members of the legal profession, in consultation with social media experts which can be delivered through interactive workshops.

 

—Anurag Bana is Senior Legal Advisor, Legal Policy & Research Unit, International Bar Association, London, while Merle Balki is a trainee lawyer and former legal intern at the International Bar Association, London. (Additional inputs from Shweta Rajwade of the British Psychological Society.)

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