What not to say on X

Judges warned not to make active use of social media

New guidance addressed to judges at all levels in England and Wales tells them not to express views on social media about government policy and decisions, the legal system, political issues or controversial social issues. They are also told not to comment on ongoing court cases.

The unpublished guidance says that members of the judiciary must not post, reply to, “like” or repost anything on social media that could call into question their judicial independence, integrity or impartiality. They are instructed not get involved in arguments or debates about controversial subjects, even to correct inaccurate or offensive content posted by others.

“We think that the benefits of being on X are now outweighed by the negatives,” the Guardian said this week

The latest social media guidance for the judiciary was circulated last month and replaces guidance issued in 2021. It applies to

• salaried and fee-paid judges;

• tribunal judges and non-legal tribunal members;

• coroners; and

• magistrates.

Fee-paid judges are lawyers who sit part-time. Some practising lawyers who sit judicially for a few weeks every year regard it as perfectly acceptable to comment on social and political issues. Others are used to publishing their views on developments in the law, even if they involve cases that may be under appeal.

A part-time tribunal judge told me:

The fact the social media guidance on its face applies in the same way to fee-paid, part-time judges as it does to salaried judges ignores the fact that part-time judges typically lead professional lives and that legislation allows them (unlike salaried judges) to be politically active.

The ban on “commenting on ongoing cases” pays no attention to the fact that it is now normal for legal practitioners to blog and post about current legal developments (and that they perform a valuable public service in doing so).

And the ban on “expressing views on government policy or decisions, the legal system, political issues, or controversial social issues” in effect stops part-time judges from taking up a political role that involves social media activity — in practice, these days, pretty much any political role.

If the guidance did mean to stop part-timers from doing those things, then it is a significant change in conditions of service and one that may mean that some part-time judges are unable to continue serving.

In a foreword to the new guidance, the lady chief justice Baroness Carr and the senior president of tribunals Sir Keith Lindblom discourage active use of social media by the judiciary, even in a private capacity. They say their guidance is aimed at ensuring that judges who choose to post online or respond to others can do so as safely as possible.

It applies not only to public services such as X, formerly Twitter, but also to judges who use WhatsApp to communicate with colleagues or take part in group conversations.

“WhatsApp messages can carry the same sorts of reputational risks as active social media use,” the guidance says. Judges can continue to use WhatsApp but “should adopt the same careful approach to the content of their WhatsApp messages [as] that set out in the guidance regarding social media content”.

The guidance tells judges:

• do not assume your use of social media is truly private or that you cannot be identified as a judge

• do not publish or share your personal details

• be wary of posting photos that may identify where you live or work

• assume everything you post will remain published indefinitely

• do not refer, or even allude, to being a judge in your social media profile or anything you post on social media

• Be alert to the risks of jigsaw identification

• Be aware that people on social media may not be who they appear to be

• Pause before you post

• Be aware that you can disclose information about yourself and your views by following, by friending or unfriending people, by liking posts or by posting emojis.

• Keep in mind that it can be easy to “like” content accidentally and that this can be perceived as endorsement

• Keep in mind that social media misuse does not become acceptable because

  • you were acting in a private capacity

  • you did not refer to your judicial role

  • you used a pseudonym

  • you were being humorous or ironic

  • you made a mistake

  • you had — or thought you had — restricted your audience by using privacy settings

Comment

This is wise advice — and not just for judges. It is clearly drawn from experience. Any part-time judge who aspires to a full-time appointment should follow it to the letter.

But what of those who see themselves as lawyers first and judges second? What about non-legal tribunal members and lay magistrates? Is this guidance unlawful interference with their freedom of expression? Or is it “necessary in a democratic society… for maintaining the authority and impartiality of the judiciary”?

Perhaps a comparison can be made with retired judges. Should they speak to journalists? Should they give interviews?

Those were among the questions I raised in an interview this week with Lord Dyson, a former head of civil justice. He also told me why he thought there was no need for those retired judges who give legal advice — as he does — to be regulated in the same way as lawyers.

I assess his arguments in my latest column for the Law Society Gazette.

Both the podcast interview and my Gazette column are based on the Birkenhead lecture that Dyson delivered at Gray’s Inn this week. He has very kindly allowed me to publish his lecture in full. You can read it here.

Update 16 November: this post has been picked up by today’s Telegraph. And also by Legal Cheek.