Handbook for Judicial Officers — Socialising and social media

Where social media is concerned — especially as it applies to judicial officers and the courts — Aesop’s “slow and steady” cautionary approach is best. This old fable provides sage advice for this media phenomenon. “Hastening slowly”^[4] in the uptake of social media calls for a combination of digital media literacy, including an understanding of its fragmented and complex parts, and a strategic approach to its use. For judicial officers navigating this space, social media also presents a unique range of professional, cultural and political challenges. As the Honourable Justice Steven Rares of the Federal Court noted:^[5]

There is nothing simple about social media. While the tapping out of a few words and posting, sharing or liking might seem like child’s play — and often is — this unpredictable field of communication networks is permeated with risks and complexities. A central paradox exists within social media’s two key elements of youth and power. On the one hand, in 2018, Facebook is only 14 years old, YouTube 13, Twitter 12, Instagram 8 and Snapchat 6. Yet, they hold monumental power that seems out of step with their youth, with social media collectively positioned at the epicentre of the media and communications environment in which we live, learn, work and connect.^[6]

Social media presents a range of possible scenarios that may intersect with judicial life. These include judicial personal use; courts’ institutional use; others’ use to report or comment on the work of the courts, including its use to make personal commentary or attacks on judges; and its use to post material that could potentially prejudice the outcome of a criminal trial. This article deals with the first two scenarios and associated issues: those generated from the courts’ and judicial officers’ use or potential use of social media.

Social media usage is ubiquitous and pervasive.^[7] Nearly 80% of Australian adults who access the internet use it in some form. Usage is almost universal among 18–29 year olds (99%), with 96% of those aged 30–39 and 86% of those aged 40–49 also using it.^[8] In business, figures are less dramatic; just under 50% of small to medium companies, and 60% of large companies, use social media.^[9] A recent report captures the urgency with which business is being pressured to get on board the social media juggernaut:^[10]

At a personal, rather than an institutional level, judicial officers are subject to the same factors that have resulted in increasing numbers of Australians making use of various forms of social media. As Rares J points out:^[11]

In 2014, the former Chief Justice of Victoria, the Honourable Marilyn Warren AC, warned that the judiciary should not be “left behind and trapped in [its] own traditions”,^[12] noting the potential for court use of social media to enhance community engagement.^[13] She pointed out that social media’s capacity to enable public access to court proceedings, and the contribution this can bring to enhancing public trust and confidence in the work of the courts, are central to the relationship that a court has with any form of media.^[14] This demanded a strategic approach. Chief Justice Warren called for “constructive strategies” to deal with the changed media environment and how it aligns with open justice.^[15]

This article takes up this challenge, proposing an informed, strategic and “slow and steady” approach to the often frenetic world of social media, led by two key strategies: first, the use of institutionalised social media supported by professional qualified staff; and second, support of the judiciary to achieve digital media competencies in order to confidently manage the complex world of social media.

We know that increasingly members of the executive and legislature are taking to social media as a primary means of communication with the public. World leaders are famous, or notorious, for its use in activity that is described as “mediatisation” or “processes whereby the logic and institutionalised norms of the media affect the behaviour of actors and institutions belonging to other societal subsystems”.^[16] As political science scholar Kent Asp notes:^[17]

It is argued that politicians cannot risk ignoring the media and its operating logics because mediatised language and thinking becomes part of the accepted way for how politicians engage with the voting public.^[18]

The same imperative might be seen to apply in some courts’ jurisdictions, for example in US State Courts where elected judges rely on the popular vote. There are examples of US judges with active social media profiles who, while not commenting on specific cases, sometimes appear to blur the boundaries between the personal and the professional, for example, by commenting (albeit obliquely) on political issues or, from an educational perspective, in relation to legal issues.^[19]

Blackham and Williams note how US courts have a more external focus than courts in the UK or Australia, a position that is encouraged by the public election of judicial officers. In comparing the use of social media by judges across these three countries, Blackham and Williams observed that courts in jurisdictions where judges do not face the same pressures in relation to re-election have tended to take a collective, rather than an individual, approach to communication. They suggest:^[20]

Social media use by the judiciary, in Australia and internationally, has attracted a good deal of attention from legal scholars and the judiciary itself, including the publication of a 2016 issues paper for the Australasian Institute of Judicial Administration (AIJA).^[21] While some analysis has merged personal (in the sense of private) judicial use of social media with that of the institutional use by courts, in our view, it is important to separate them. We suggest that they should be considered as two distinct approaches, that is: courts’ use of social media at the institutional level, generally undertaken by communication professionals or court Public Information Officers (PIOs); and judges adopting social media for their own personal use.

At an institutional level, Australian courts have moved to adopt social media at a slow and measured pace. Twitter — arguably the most popular court social media platform — was first used in the Supreme Court of Victoria in 2011, followed by the Family Court of Australia.^[22] Shortly after this, an AIJA conference for public information officers in Brisbane during February 2012, featuring the theme “Social Media and Courts”, saw the beginning of a “real migration to social networks” by the courts.^[23] An earlier review of those developments observed that courts had both “sought out visibility and had visibility imposed on them ... first via the Web 1.0 (predominantly websites) ... and more recently, by Web 2.0 (predominantly social media)”.^[24]

Compared to other institutions, such as the police, the courts were relatively cautious in adopting social media. A comparative study of Australian courts and police services found that the more tentative approach, and the limited nature of courts’ use of social media, may have been attributed to:

These factors are inter-related. Courts generally, as institutions, have not had a focus on external communication, and have only relatively recently appointed communication professionals to assist them in engaging with the media or the public.^[26] Historically, external court communication had focussed on the issuing of the court’s decision or judgment, its accuracy, and ensuring its accessibility. The court environment has also historically privileged the use of formal language, and a professional culture focussed on individual cases, rather than institutional performance, which were also contributing factors to a slow uptake of social media. The courts’ cautious adoption of social media has also been attributed to the very different environments of media and courts. A report by the US Conference of Court Public Information Officers (CCPIO) found that:

Nevertheless, there has been a shift in recent years with many Australian and US courts incorporating social media into their overall communication strategies.^[28] In a 2017 study of 16 public information officers (PIOs) from within Australian courts and statutory bodies about their use of social media, almost all reported using social media of some sort in the course of their work, in addition to an organisational website.^[29] The spread of social media outlets they used is outlined in the following table:

Why are courts turning to social media? One scholar notes how the internet, and its social media functions, provide courts with the means of “delivering a fuller and truer picture of their work to the public than the traditional media provide”.^[30] Research has found that courts use social media for various purposes, including to support the news media in their coverage of cases, to counter inaccuracies in media coverage, and to reach a broader audience-base.^[31]

A study of Victorian courts’ uptake of social media found that social media significantly expanded the reach of the courts’ communication, with one high-profile trial, for example, resulting in a court Twitter account picking up 500 followers in one week.^[32] On a broader level, other social media accounts have been linked to AustLII in order to provide access to a wide range of legal literature and court decisions.^[33]

One PIO who was an early adopter of social media stressed that the shift to social media was a necessary progression in professional communication practice:^[34]

This highlights the ease with which professional communicators are able to adapt to social media use.

Indeed, the development, over several decades, of the role of court PIOs^[35] has been a key factor in Australian courts increasingly adopting social media strategies. The use of communication professionals, trained and increasingly expert in the digital literacies associated with social media, who carry out their role within clearly understood parameters as part of court strategic communication plans, has provided a way to manage the appropriate institutional use of social media. It is noted that not all courts use social media — the reasons for this are varied, often relating to resourcing and the requirement for social media to be constantly monitored. Nevertheless, there is a trend in this direction for courts. Drawing on these observations, we propose the first strategy for social media use is to foster and advance the institutional use of social media, managed by communication and media professionals.

We do not suggest that personal use of social media does not have a place. Rather, this first strategy is proposed to advance transparency and reach of court practices. Where judges choose to use social media for private or personal use, new guidelines provide some assistance which we now explore.

The rapidity with which social media has permeated the judicial world can be illustrated by the fact that, as recently as five years ago, a study of judicial conduct guidelines in Australia, Canada and the UK found little to no mention of social media.^[36] Things moved a little more rapidly in the US where, in 2010, the Judicial Conference of the United States issued guidance to assist courts in developing ethical guidelines for judges on the use of social media.^[37] The US federal judiciary and many US State courts have since published such guidance,^[38] as have the UK courts and tribunals.^[39]

In Australia, the 3rd edition of the Guide to judicial conduct,^[40] introduced a chapter on social media. This provides the judiciary with guidance on personal social media use. The guidelines point out that there is no reason in principle to deny judges the use of social media but that the risks should be heeded and:^[41]

The general tenor of all this advice to judicial officers might be summarised as follows:

These guidelines are drawn in fairly broad terms, as are most ethical guidelines for the judiciary. This is necessary because it is generally impossible to foresee the detail of every type of issue or situation that may give rise to an ethical consideration.

This is likely to be even more the case in the rapidly evolving world of social media, where new platforms, tools and modes of use are constantly being developed. Many in the judiciary, in common with many in the community, are relatively new to the world of personal social media use, so that consideration of how to apply these principles is also likely to be an ongoing task.

As with other forms of public communication, judicial officers who choose to use social media need to exercise caution to ensure that they do not compromise their independence or lay themselves open to risks to their personal safety. There are also factors about social media that raise issues for personal privacy that go beyond the content of what is posted and may have additional implications for judicial officers. This includes how social media algorithms enable the online activity of the individual to be tracked; for behaviours to be monitored; and for personal preferences in everything from food to wine to news to be predicted.^[42] While the surveillance features of social media have recently come under the spotlight since the so-called “Facebook data scandal” or “Cambridge Analytica” data breach in 2018, experts have pointed out that data sharing by social media platforms has been going on for years, readily enabled by the standard “terms and conditions” that users consent to.^[43] It is likely that the issue of privacy and surveillance will become a more central concern as the impact and ramifications of social media use, and its impacts on society, become better understood. In keeping with this, we suggest that there is a need for a stronger understanding of the field of digital media literacy.

The Australian Communication and Media Authority (ACMA) sees digital media literacy as one of the key competencies of the 21st century, on the basis that the effective use of media and communication content and platforms is central to citizen and consumer participation in society.^[44] To be media literate in the digital age, individuals need to be able to:

ACMA identifies two key pathways in digital media literacy: first, an educational approach which prioritises the importance of critical interpretive skills needed to decipher media content and messages; second, a regulatory approach that focusses on technical competencies needed to be effective across a range of communication platforms. The first requires the ability to critically analyse and understand language and textual content, as well as media power; the other requires the know-how and skill-set to create and publish.

For those working in roles in society in which media needs to be interpreted and understood, especially where it is challenged or in question, critical literacy is becoming increasingly important. Judicial officers are increasingly likely to find themselves in this category. To take one recent example, the inquiry by the NSW Law Reform Commission into access to digital assets upon death or incapacity^[46] is likely to result in legislation that will require judicial application, and interpretation in relation to digital assets. Supporting judges to achieve levels of critical literacy skills in relation to social media will require the ongoing provision of information and resources, and opportunities to acquire learning skills and share experience via judicial professional development programs. This points to the importance of our second strategy to foster and develop critical digital media literacies for the judiciary through adequate resourcing, training and advisories.

We live in what has been called a “media life”, in which media is described as both necessary and unavoidable.^[47] Therefore, at a minimum, this second strategy proposes the need to keep guidelines updated and readily available and to provide regular professional development opportunities in social media for judicial officers. Implicit within this strategy is the need for caution in contributing to any social media engagement. At the same time, professional life increasingly demands we understand the digital media world.

We suggest that, in the Australian context, the social media voice of the court may be best managed at the institutional level through its collective voice. To achieve this, the professional communication function will increasingly demand appropriate resourcing and the courts also need to have appropriate internal policies and practices to ensure this enhances the open justice function of the courts. In addition, there is also the need to appropriately resource and support judges to be digitally media literate, as consumers and analysts but also potentially as producers of social media. This requires professional training and development — to understand and apply the critical media literacies that ACMA has identified across any and all professional and personal social media use. It will also require the ongoing review and updating of ethical guidelines.

In summary, the ubiquity of social media, its capacity for disrupting society and its relevance for 21st century open justice means that it cannot be ignored, either at an institutional or individual level. However, the strategic approach for courts is not to rush in headlong, or feel pressured to mediatise, but to take a measured approach with a focus on trained court communication professionals, judicial professional development and shared experience. The idea of “hastening slowly” should take on a special meaning for the judiciary in the social media environment, with its parallel demands of caution and communication in the modern open justice arena.