Judging the balance: judiciary banned from blogging?

Judges and magistrates in England and Wales have been warned they face disciplinary action if they write about their jobs on blogs or on Twitter. 

The rules have been set out by Lord Justice Goldring, the Senior Presiding Judge, and provide that:

“Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.”

The full guidance is helpfully reproduced by Lucy Reed here.  Notably the definition of “blogging” includes “publishing material on micro-blogging sites such as Twitter”. The second sentence appears to be a nod to the fact that anonymous bloggers are sometimes a target of the media.

There is of course huge public interest in the maintenance of an independent and impartial judiciary as one of the cornerstones of our democracy.   Judges often have to administer the law in matters of life and death. There was a timely reminder of the boundaries of judge-made common law just last week, when the High Court of Justice refused to grant relief to the paralysed Tony Nicklinson that it would be lawful, on grounds of necessity, for his GP to terminate his life.  (The judges concerned expressed sympathy for Mr Nicklinson, but believed that such relief could only be granted by statutory law enacted by parliament.)

The guidance is probably aimed primarily at judges and magistrates who blog anonymously.  “Bystander”, the author of the Magistrates Blog (“Musings and Snippets from an English Magistrate… Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong”) has stated that he/she is currently “reflecting” on the guidance.

As Adam Wagner points out however, the effect of these new rules is potentially very widespread. Lots of barristers sit as part-time judges, whether in the County Court, as Deputy High Court Judges or Recorders. This guidance potentially bans them from blogging, as anyone would be able to find out that they are judges simply by checking their chambers profile.

It also seems curious that such guidance be issued specifically in regard to blogging, given that senior judges are allowed to give interviews and publish books and articles, and launch campaigns.  For example serving judge Sir Paul Coleridge was permitted to launch a public campaign earlier this year to defend marriage and protect children against the “destructive scourge” of divorce and family break down.

Judging the balance
As with all forms of communication there is a prudent balance to be struck, and hopefully the blogging guidance won’t have a chilling effect on the blogging activities of the judiciary, but merely remind them of their responsibilities.  Blogging and tweeting in the legal fraternity has been known to stray into undesirable territories. 

One of the most colourful anonymous legal bloggers (and Twitter users) was Geek Lawyer (real name David Harris) who eventually took things too far and was disbarred. Lazy headlines suggested it was thanks to his outrageous Twitter account, but in reality he represented in court a company that he had a personal interest in (the British Usenet indexing site Newzbin) without disclosing that interest, and accordingly the Bar Standards Board found him guilty of conduct which was “likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute”.

To blog or not to blog?
Offensive tweets from the Geek Lawyer Twitter account were actually a fairly minor part of the case against Mr Harris. Nevertheless, from an intellectual perspective it’s fun to take a look at the at the arguments he put forward to defend his tweets, as set out by fellow anonymous legal blogger CharonQC:

  1. It wasn’t him qua David Harris, a practising barrister – it was Geeklawyer wot dun it. Geeklawyer doesn’t exist and is not a practising barrister recognised by The Bar Council
  2. The tweets were not communications made in the course of professional practice. They were social.
  3. Social conduct does not, save in extreme cases such as criminal behaviour, form a lawful basis for sanctions by professional conduct committees as it transgresses both the right to a private life and the right to private correspondence under Article 8 of the European Convention on Human Rights.

My conclusion is that these arguments are incredibly smart, witty etc – but it would have been even smarter to have avoided the hassle in the first place.  Legal blogger Brian Inkster advises that lawyers cannot hide behind anonymity on Twitter, but I would also emphasise that they shouldn’t be put off social media either.

Many lawyers are still trying to perfect the “voice” to use on Twitter. When using my Twitter account Denislawyer, I don’t want to be dry and boring, but neither do I want to be too frivolous. I want to safeguard client confidentiality, but I also want to provide followers with context to my tweets by giving an idea of the type of work I carry out.

The importance of social media guidance
As with any business, the individual has to exercise judgement, but a clear social media policy provided by an employer or members organisation can be really helpful in setting out some boundaries.   As I recommended last month, all organisations should have in place suitable policies to guide employees and/or members regarding use of social media.

Different businesses will require different policies, and Brodies’ technology and employment lawyers can help you to develop an appropriate policy for your business.

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