A recent column in the Ottawa Citizen raised some interesting issues – both ethical and legal. The column was prompted by an Ontario case, R. v. Elliott, where a judge heard conflicting evidence about the mechanics of Twitter. People conversant with the intricacies of Twitter communication would know which evidence was accurate, but the judge decided that fact was not proven because of the conflicting evidence. It was not an important issue in the trial, but it got columnist David Reevely thinking. He concluded that since judges are supposed to stay current with modern life, “it’d probably be good for justice if they, cautiously and with dignity, dipped a toe in (social media) every once in a while.”
This week eNews looks at the ethical challenges judges face if they participate in social media and whether there are other ways they can stay current with this significant aspect of modern life. Next week’s eNews will consider a related legal issue.
Why don’t more judges use social media?
Judges do need to stay in touch with their communities - in order to evaluate evidence and perform their duties effectively, among other reasons. Since Canadians make wide use of social media, it forms part of the modern culture judges need to understand. A 2013 survey by the Canadian Centre for Court Technology indicated that fewer than half of Canadian judges and tribunal members surveyed used social media. The survey had a low response rate and the proportion of judges on social media may well have increased in the last three years, but there are still many judges who don’t use it.
Mr. Reevely acknowledged that judges have good reasons to stay off Twitter or Facebook. He cited two cases where Ontario judges’ online conduct led to one being overturned on appeal and the other resigning. He did note that the judges’ conduct was the problem - social media was merely the means by which they transgressed.
Nevertheless, there are valid ethical concerns for judges who participate in social media. Judicial ethics require that judges avoid both impropriety and the appearance of impropriety. For example, judges should not communicate with only one of the parties in a lawsuit. They should not conduct their own investigations of cases they are hearing, and they should not make public statements on cases they are hearing or may hear in the future.
In the U.S. ethical expectations of judges are affected by the fact that judges are elected in some states, accept campaign contributions, and use social media to campaign. American judicial ethics advisory committees have approved judges’ use of social media for social purposes, but advised extreme caution. Advisory committees’ opinions are split on whether U.S. judges may friend lawyers, social workers or law enforcement officers who appear before them.
In Canada, judges are guided by the Canadian Judicial Council’s Ethical Principles for Judges which does not address social media specifically. But applying the general ethical guidelines would suggest that judges using social media should be cautious about friending or following someone or liking something on social media in order to avoid creating an impression of bias. It would suggest they should maintain appropriate decorum in every comment, photograph or other information shared, avoid comments that could be misinterpreted, and avoid viewing the pages of lawyers, parties or witnesses involved in cases before them. Judges using social media would also need to master and then closely monitor their social media privacy settings, in order to avoid both inappropriate contacts and safety and security risks to themselves and their families.
So balancing the need to understand current culture with the ethical challenges of social media activity is not simple. Some judges might do it by using the most private settings and limiting contacts to close friends and family. Others might use a pen name, although they would still be bound by all the ethical constraints on judges and could not make public comments using a pseudonym. Many simply choose not to participate.
Are there any other solutions?
As baby boomer judges retire and are replaced by lawyers who have used social media, the knowledge gap Mr. Reevely identified will disappear. The process is the same as with any cultural change.
But the B.C. Provincial Court isn’t just waiting for that renewal. The Court has a history of being proactive in its efforts to acquaint its judges with cultural developments they need to understand. For example, beginning in the late 1980s a judge of our Court pioneered gender equality, diversity and social context training for judges in Canada.
In 2012 the Court’s Education Committee organized a program on social media, featuring Nora Young, author, journalist and host of CBC’s “Spark”, a radio show about technology, culture and how use of new technologies changes society. Another presenter was Christopher Davey, co-author of a research paper published by the Conference of Court Public Information Officers on the effects of social media on the judicial system. After an overview of current social media, judges discussed related ethical and evidentiary issues.
Since then, the National Judicial Institute, an independent non-profit organization offering judicial education programs and resources to all Canadian judges, has offered an online course on ethical issues related to social media, and provided judges with an introduction to social media and a checklist for using it. The checklist contains information about privacy settings and the sound advice, “If you wouldn’t want it printed in the newspaper, don’t post it online!”
So even though Canadian judges may not have embraced social media interaction with the same enthusiasm as others, they do recognize the importance of understanding it in order to perform their duties effectively.