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The Need for Judicial Education and Training on the use of Social Media by Judicial Officers – Dr John Lowndes OAM FAAL

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THE NEED FOR JUDICIAL EDUCATION AND TRAINING ON THE USE OF SOCIAL MEDIA BY JUDICIAL OFFICERS

Although some codes of judicial conduct around the world [1]and other statements of judicial ethics[2] address the use of social media by judges, and stress the need for its use to be consistent with judicially ethic norms[3], based on the Bangalore Principles,[4] more is required. It is very important that Australian judicial officers receive actual training on the use of social media;[5] and “effective judicial training is essential [not only] to protect judges [but] to maintain compliance with ethical standards”.[6]

The National Judicial College of Australia (NJCA), the Australasian Institute of Judicial Administration Inc (AIJA) and the Judicial Conference of Australia (JCA) have recognised this imperative by providing valuable training for judicial officers regarding the use of social media.[7] The recent United Nations Office on Drugs and Crime (UNODC) Non- Binding Guidelines on the Use of Social Media by Judges is not only a timely reminder of the continuing need for judicial education and training in this important sphere of judicial conduct, but a significant and informative set of guidelines that deal with key aspects such as online judicial identification, online content and behaviour, online friendships and relationships, privacy and security and most relevantly training.[8]

The Guidelines provide a blueprint or, in today’s parlance, a roadmap for future judicial education and training on the use of social media that has the potential to build upon and enhance the ground-breaking training provided by the NJCA, AIJA and the JCA in recent years.

The Guidelines are not only intended to provide guidance to both judges and judiciaries (including court personnel) in relation to their interaction with and participation in social media – pointing out “the risks and opportunities in judges’ awareness and use of social media”[9] – but to “delineate a broader framework on how to guide and train judges on the use of different social media platforms consistent with international and regional standards of judicial conduct and ethics and existing codes of conduct”.[10] As regards the latter, the Guidelines state that “when using social media, judges should always be guided by the Bangalore Principles as well as the detailed accompanying Commentary”.[11]

Irrespective of whether a judicial officer uses social media, the Guidelines recommend that he or she “should have a general knowledge of social media, including how it may generate evidence in cases that judges may decide” and an “understanding of existing online communication tools and technology, including artificial -intelligence -powered technology”.[12] Furthermore, all judicial officers “should receive specific training on the benefits , risks and pitfalls of their personal use of social media , as well as on its use by their family members, close friends and court personnel”.[13]

More particularly, the Guidelines recommend that all newly appointed judicial officers and those with “some level of permanency” should be provided with training on a continuous basis in the following areas involving the use of social media:[14]

  • the complete range of social media platforms that are available for use and how the various mediums operate;
  • the benefits and potential risks and consequences of participating in each of these platforms;
  • how judges can use social media in a manner that protects their security and enables them to “fulfil their obligations to maintain judicial independence, the dignity of office and public confidence”;[15]
  • how a judicial officer’s family members “should be adequately informed to play their part in ensuring that judges are not subject to security risks and are successfully fulfilling their obligations as judges”;[16]
  • how the use of social media by court staff “may also have an impact on public confidence in the judiciary, judicial integrity, impartiality and independence”; and
  • the need to “avoid researching parties and discovering things that are not part of evidence that is before the court or tribunal”.

Finally, but not least, the Guidelines recommend that judiciaries should provide “ongoing confidential resources for inquiry and advice as needed” in relation to the use of social media and “consider publishing an anonymous compilation of such advice and direction”.[17] In addition, judiciaries “may also consider preparing other practical guidance for judges on the topic of the use of social media”.[18]

The Guidelines remind us why the specific training and guidance recommended by the UNODC Guidelines matters not only to the individual judicial officer, but also to the judiciary and the community it serves. It matters to the individual judicial officer because all judicial officers are “governed by the principles of, and must act in a manner that promotes public confidence in, judicial impartiality, independence and integrity” [19]; and improper or inappropriate use of social media may impact upon a judicial officer’s integrity, impartiality and independence. It matters to the judiciary as a whole because it is a collegial institution[20], and conduct that adversely impacts upon a member of the judiciary has a correspondingly negative effect on the independence, impartiality and integrity of the judiciary.[21] It matters to the community at large because such a negative effect can undermine public confidence in not only individual judicial officers, but in the judiciary generally and its judicial decisions. [22]

In the final analysis, the Guidelines strike a proper balance between “training judicial officers about social media in the abstract sense and telling them about the ethical challenges that may arise if they use social media” – in the words of Dr Bromberg – Krawitz[23] – and educating and training judicial officers in the practical use of social media that is consistent with universally accepted standards of conduct. The Guidelines, which are intended to supplement existing codes of judicial conduct (that vary as to content and detail),[24] are the foundation on which we should be building for the future in the interests of maintaining an independent and accountable judiciary.

Dr John Lowndes OAM FAAL

The National Judicial College of Australia is considering how it can further support training in this area.

[1]For example, the Guide to Judicial Conduct (3rd edition) published for the Council of Chief Justices of Australia and New Zealand by the Australasian Institute of Judicial Administration Inc (AIJA) Chapter Nine; the UK Guide to Judicial Conduct (March 2020), pp 17-18; and the New Zealand Guidelines for Judicial Conduct (2019), p 15.

[2] For example, the Federal Court of Australia Draft Guidelines for Judges about Using Electronic Social Media (2013) cited by Dr Marilyn Bromberg-Krawitz “Issues Paper for a Symposium: Challenges of Social Media for Courts & Tribunals” May 2016 (organised by the Australasian Administration Institute Inc and the Judicial Conference of Australia) p 12 and by Justice Steven Rares “Social Media- Challenges for Lawyers and the Courts” (FCA) [2017] FedJSchol 19 at [28].

[3] Judge Barry Clarke “Social Media: A Survival Guide” Commonwealth Judicial Journal Vol 23 No 2 December 2017, p 24.

[4] Those principles are: independence, impartiality, integrity, propriety, equality and competence and diligence: Judge Barry Clarke n 3, p 22.

[5] Dr Marilyn Bromberg-Krawitz n 2, p 11.

[6] Judge Barry Clarke n 3, p 24.

[7] There are sessions within the National Judicial College Orientation and National Magistrates Orientation Programs which include discussion on the use of social media.The National Judicial College of Australia (NJCA) held a session entitled “Media/Social Media and its Influence on the Judiciary” in its “Dialogues on Being a Judge”: Dr Bromberg – Krawitz n 2, p 8 citing L Bartels and J Lee “Jurors Using Social Media in our Courts: Challenges and Responses” (2013) 23 Journal of Judicial Administration 35, 37. The Australasian Institute of Judicial Administration Incorporated (AIJA) held an “AIJA Courts and Tribunals Technology Conference” in May 2015 which included sessions on social media: Dr Bromberg – Krawitz n 2, pp 8-9.The Australasian Institute of Judicial Administration Inc and the Judicial College of Australia also “provided valuable training for judicial officers regarding social media at the Symposium”: Dr Bromberg-Krawitz n 2, p 9.

[8]https://www.unodc.org/res/ji/import/international_standards/social_media_guidelines/social_media_guidelines_final.pdf. The Guidelines are the result of the development by the Global Judicial Integrity Network of “a set of international, non -binding guidelines that could (a) serve as a source of inspiration for judiciaries that are contemplating addressing the topic; and (b) inform judges on the various risks and opportunities in using social media”: the UNODC Non -Binding Guidelines on the Use of Social Media by Judges”, p 1. The Commonwealth Magistrates’ and Judges’ Association (CMJA) is a partner organisation of the UNDOC and has worked with the UNODC on the Global Judicial Integrity Network.

[9] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8, p 3.

[10] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8, p 3.

[11] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8, p 2. The Guidelines note that although social media platforms did not exist at the time the Bangalore Principles were formulated, they remain guiding principles and social media engages those principles “in different ways, and judges should be aware of those”: pp 2 and 3.

[12] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8 at [3].

[13] UNODC Non-Binding Guidelines on the Use of Social Media by Judges n 8 at [4]. For the risks and opportunities associated with the use of social media see pp 3-4 of the Guidelines. For a further discussion of the benefits, risks and pitfalls of judicial officers’ use of social media in a personal capacity and the risks associated with family members using social media see Dr Bromberg-Krawitz n 2, pp 6-8 and pp 14-16.

[14] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8 at [38].

[15] As to how the inappropriate use of social media “could negatively impact upon the public confidence in the judiciary” see Dr Bromberg -Krawitz n 2, p 9.

[16] This reflects the observation made by Dr Bromberg-Krawitz n 2, p 16: “the courts can provide training and/or guidelines to judicial officer’s families, in addition to training to judicial officers, regarding ‘ethical issues and potential security concerns associated with social media”, citing Utah State Courts, Social Media Subcommitte of the Judicial Outreach Committee , Report and Recommendations for Judges Using Social Media (18 October 2011). See also “Use of Social Media by Judges” Discussion Guide for the Expert Group Meeting (5-7 November 2018, Vienna), p 21.

[17] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8 at [40].

[18] UNODC Non -Binding Guidelines on the Use of Social Media by Judges n 8 at [40]. Such guidance could include practical tips on the use of social media of the kind suggested by Dr Bromberg – Krawitz n 2, p 14 and Judge Barry Clarke n 3, p 21. As suggested by Judge Barry Clarke (p 21) these are “matters that can and should be emphasised through judicial training”.

[19] Guide to Judicial Conduct (3rd edition) n 1, Chapter 9.

[20] Guide to Judicial Conduct (3rd edition) n 1, Chapter 5.14.

[21] Dr Bromberg – Krawitz n 2, p 9.

[22] Dr Bromberg – Krawitz n 2, pp 2 and 9.

[23] Dr Bromberg – Kravitz n 2, p 9.

[24] For example, the  Guide to Judicial  Conduct (3rd edition) n 1 (Chapter 9) addresses the ethical aspects of the use of social media, guided by the principles of impartiality, judicial independence and integrity set out in the Guide, and highlights some of the risks associated with its use. The New Zealand Guidelines to Judicial Conduct (at [88]) focus upon the ethical aspects of the use of social media. By way of contrast, the UK Guide to Judicial Conduct (pp 17-18) focuses more on the practical aspects of the use of social media and, in effect, includes a handbook of practical tips for judicial officers using social media in a personal capacity.