16 November 2018 - While the pace of developments in technology continues to accelerate to the great pleasure of many, it does present challenges to certain categories of professional disciplines whose nature does not lend itself well to much flexibility; with the preservation of judicial integrity at the helm of their principles, many judges may have difficulty embracing rapid innovation.
Judges must comply with legal and ethical ramifications which other professions may not face when using technology. This is particularly the case when considering social media platforms, which have become ubiquitous in the last few years; inserting themselves into people's mundane activities, they allow instant communication with family, friends and total strangers, the sharing of holiday photos and funny memes, and the ability of commenting on news stories. While these seemingly ordinary actions hold no repercussions for most people, so long as they adhere to a modicum of social etiquette, there could be unintended consequences for judges.
Most judges understand well the positive aspects social media platforms can bring, such as openness, closeness to society, and the potential to spread the reach of their expertise and increase the public's understanding of the law. On the other hand, negative aspects stem from both what judges decide to post and from what judges may be subjected to on a specific medium, such as misrepresentation or misinterpretation of their posts, or even cyber bullying and threats to privacy and safety.
In order to close this gap, there is a need for education, training and recommendations on how social media can affect its users. This was the starting consensus of 25 judges and judicial experts from five continents, gathered in UNODC's Vienna headquarters in early-November by the Global Judicial Integrity Network, an initiative of the Judicial Integrity component of the Global Programme for the Implementation of the Doha Declaration.
Over three days of in-depth discussions to determine how to best guide judges as they begin using or increase their presence on new platforms, it was agreed from the start that social media posed both challenges and opportunities and that these should be fully understood by judges; indeed, the question was not whether judges should use social media, but rather how they should do so within the parameters of judicial ethics and integrity already available.
"If we are moving forward, it is obvious that guidance and training are required in order to avoid the pitfalls. The Bangalore Principles may have been developed before social media, but whatever is seen to be unbecoming conduct can still be interpreted in the world of social media. We are not going to invent new standards; they are the same standards, now digitized," said Judge Kashim Zannah, Chief Judge of the Borno State, Nigeria, and Member of the Advisory Board of the Global Judicial Integrity Network.
The Bangalore Principles of Judicial Conduct, endorsed by the United Nations Economic and Social Council in 2006, have already established the values which judges must uphold, namely independence, impartiality, integrity, propriety, equality, competence and diligence. For most judicial experts, this already covers any judge's rules of engagement. The problem foreseen by some, however, was not so much a judge's conscious flouting of these elements, but rather an unintentional slip on various issues in unchartered virtual territory.
One of these issues is whether judges should identify themselves as such on social media, whether they should use their real names, whether they should have personal or professional profiles (or both), and whether they should interact (through friending, commenting, liking, sharing) on these platforms. For Lord Jonathan Mance, Deputy President of the Supreme Court of the United Kingdom and member of the Judicial Integrity Group which penned the Bangalore Principles, it would be wise to err on the side of caution with regards to aliases which could give a false sense of security: "I think using pseudonyms is an extremely dangerous way for judges to disclose material. It gives you a feeling of impunity, but it won't survive."
Interaction with people who are not personal acquaintances was also discussed, as was the distinction between personal and professional accounts. Judge Cristi Danilet, Appeals Court in Romania, who has over 60,000 followers on his Facebook account, believes that it is acceptable to communicate with a wider circle, as long as judges followed the same criteria. "Citizens want to see more professional aspects when they look for a judge online. They are not interested in my family, but in me as an expert on law. It's good to have a code of conduct, but at the same time we should respect all the rules we already have offline."
The immediacy of social media was a point some judges touched upon, as it encouraged people to think quickly, which could be dangerous for judges. "Social media has something to do with emotions, and judges could be affected. People are driven left and right by social media, and judges should be shielded," warned Omar Ganim Mohamed, Director of International Cooperation Unit, Office of the Chief Justice of Qatar.
On all these points, there is agreement that only adequate, personalized training could help judges navigate the new mediatic environment. Judge Virginia Kendall, United States District Court, is both a strong proponent of training and an active trainer herself of judges and judicial staff: "It is not intuitive, and you need to train judges on their own code of conduct. The insidious nature of social media includes that it stays forever." She advises demonstrating to judges how to use various actual social platforms (for example, showing how to tweet, how to like, or how to comment), in addition to how posts can be copied, altered or reposted.
Such trainings, deemed necessary by all judges, should be given by professionals who understand both the technical side and the jargon of social media technology, and who understand the general requirements of the judicial profession. Judge Barry Clarke, Leadership Judge, Employment Tribunal of England and Wales, summed it up: "There is a recognition that social media is complex and evolving, and that judicial staff need to be trained. The level of knowledge is so varied that even a commentary saying that training is important will help jurisdictions make the case that something needs to be done."
Judge Lynne Leitch, Justice at the Superior Court of Justice of Canada, and member of the Advisory Board of the Global Judicial Integrity Network, stressed the need to be at the forefront of all new technology, for judges to understand what was coming next: "Perhaps we need a commentary to reveal that you can unwittingly breach the code of conduct through new channels of social media. It is important for new judges to appreciate that it is becoming more difficult, that your conduct is able to be viewed 24/7 and permanently by what and by how you are communicating in this digital world."
Conclusions on the guidelines and opportunities in judges' use of social media will be finalized by the experts and disseminated through the Global Judicial Integrity Network's website for further consultations. A final draft of the guidelines is expected to be presented at the next High-Level Meeting of the Network, planned to take place in November 2019 in Doha, Qatar.