Haters gonna hate: when the public uses social media to comment critically or maliciously about judicial officers

Haters gonna hate: when the public uses social media to comment critically or maliciously about judicial officers^[1]

Dr M Bromberg^[2] and Mr A Ekert^[3]

It is important that the public has confidence in the judiciary so that it will abide by its decisions. However, there are many ways to undermine the public confidence in the judiciary. A relatively new method of undermining the public confidence in the judiciary can occur when the public writes highly critical or malicious comments about the judiciary on social media. Such comments can spread on social media instantaneously to a huge number of people — this makes it unique in comparison to some of the other methods of undermining confidence in the judiciary. This article examines how the government and business deal with critical or malicious comments on social media and applies this to the judiciary. It argues that it is important that the judiciary take preventive action in this area so that they are in the best position to deal with critical or malicious comments on social media when they are posted.

Introduction

A private citizen tweeted the following about the Family Court of Australia in 2016 “@FamilyCourtAU Yep the abuser gets his privacy, while his victims are abused by this court. The court needs to be shut down”.^[4] The public can write similar comments about the judiciary on social media. If they do, what impact can the comments have on the public confidence in the judiciary? What actions should be taken, if any? What considerations should be included when deciding whether to take action? This article seeks to provide some information to consider when contemplating answers to these questions.

Fair criticism of judicial officers is an important part of democracy, and useful criticism may benefit the judiciary.^[5] The public may expect some people to criticise judicial officers because of the nature of their work, especially because of their role in sentencing. However, some comments that are critical or malicious regarding judicial officers can negatively impact the public confidence in the judiciary. Consequently, it is important to consider what actions should be taken when such comments are made.

This article explores the issues that arise when a member of the public makes critical or malicious comments about a judicial officer on social media.^[6] First, it considers the effects such comments may have on the public confidence in the judiciary. It examines the underlying principles of the “scandalising the court” offence, a branch of contempt of court law traditionally used to safeguard the judiciary from undue criticism. Next, it examines social media moderating strategies that different non-legal sectors use and applies them to the judiciary. Finally, it considers what protections, both statutory and policy based, may be used to punish people who write malicious comments about judicial officers on social media, in addition to possibly protecting judicial officers from future harm by acting as a deterrent. This article argues that the courts should take precautionary measures in this area so that they are in the best position to deal with critical or malicious comments about the judiciary when they are posted. Critical or malicious comments about the judiciary can spread to millions of people instantaneously and without the judiciary knowing. These are characteristics of social media that make it different from existing forms of criticising the judiciary and any potential response requires fresh consideration in a 21st-century context.

This article is a modified version of a section in a paper that was prepared for “A Symposium: Challenges of Social Media for Courts & Tribunals” (Symposium). This article has expanded on what was written in the relevant chapter in the paper, added new material and modified parts of it. The authors of the paper decided to write this article due to the great interest that judicial officers, court staff and others at the Symposium demonstrated regarding this topic.

Under attack: what is at stake when a judicial officer is criticised on social media?

The common law has long been protective of the judiciary’s reputation. In 1765, Wilmot J asserted that:

a libel upon a Court is a reflection upon the King, and telling the people that the administration of justice is in weak or corrupt hands; that the fountain of justice itself is tainted, and, consequently, that judgments, which stream out of that fountain, must be impure and contaminated.^[7]

Justice Wilmot made these remarks in the context of a trial for a form of contempt of court offence known as scandalising the court. The offence prohibits making public statements regarding courts or judges that seek to impugn their integrity, impartiality or competence. Accepting that the “authority of the law rests on public confidence”,^[8] such comments, if broadly enough accepted, threaten to rob the judiciary of “the legitimacy necessary [for] its effective functioning as the third arm of government”.^[9] Notwithstanding its ancient origins, it remains an offence to scandalise an Australian court today.^[10] Although no one in Australia has been convicted of scandalising the court through social media comments to date,^[11] the Indian Supreme Court recently issued a contempt notice to former Supreme Court Justice Markandey Katju for making critical comments on his Facebook page. Justice Katju criticised a recent judgment in which the Supreme Court commuted an offender’s death sentence to life imprisonment.^[12]

Threats of physical harm aside, one of the main risks that critical or malicious comments about a judicial officer on social media (and any potential response) poses is how they affect the public confidence in the judiciary. Examining the rationale behind the offence of scandalising the court is helpful to consider what potential harm these comments might cause. As a starting point, it is helpful to determine how broadly the loss of confidence may extend.

Loss of confidence in the judiciary as a whole

As stated above, the classic justification for the “scandalising the court” arm of contempt law centres upon the notion of “public confidence”. The argument is that unfounded attacks on the integrity of individual judicial officers erode the public confidence in the judiciary and ultimately undermine the authority and efficacy of the law.^[13]

The offence has come under scrutiny in recent years, notably for being “so vague and general that it is an oppressive limitation on free speech”.^[14] Several academics^[15] and law reform bodies^[16] question the leap from malicious comment directed towards judicial officers to the total collapse of the legal system. In its 1987 report titled “Contempt”, the Australian Law Reform Commission called much of the thinking in this area “pure speculation” and cautioned against pursuing the maintenance of public confidence in the courts as an “absolute good”.^[17] In fact, the High Court itself acknowledges that “in many cases, the good sense of the community will be a sufficient safeguard”^[18] to such a breakdown. Given that the offence has been either abolished^[19] or severely restricted^[20] in many other common law jurisdictions with no perceivable damage to their justice systems, it is arguable that the community’s general common sense is a strong safeguard that can prevent the collapse in all but the most egregious of attacks. Nevertheless, even if malicious comments do not have such a highly significant impact on the community’s overall support of the judiciary, their existence may still contribute to a loss of public confidence in discrete elements of the justice system and its capacity to provide consistently fair and unbiased outcomes.

Loss of confidence in a particular court or tribunal

A malicious or critical comment on social media could possibly shake the public view of a particular court or tribunal. The potential damage occasioned by scandalising the court has been formulated more narrowly in this way before.^[21] There are precedents for such a loss of confidence in a particular court in Australia’s recent history. The High Court of Australia’s landmark decision Mabo v The State of Queensland (No 2)^[22] exposed the High Court to considerable criticism from the media and the executive government of the time. Justice Kirby compiled a list of such rebukes, which include the following:^[23]

“bogus, pusillanimous and evasive,” guilty of “plunging Australia into the abyss,” a “pathetic, self-appointed [group of] Kings and Queens,” … purveyors of “intellectual dishonesty,” unaware of “its place” … “unfaithful servant[s] of the Constitution” [and] “undermin[ers of] democracy”.

Similar accusations of “institutional bias”^[24] were also directed towards the Refugee Review Tribunal (RRT). At their core, these accusations all alleged that RRT decision-makers did not decide the matters before them free of executive government influence.^[25] Such comments might reasonably undermine the public confidence that “justice is being done”,^[26] sentiments that were reflected, at least, by statements produced by refugee rights activist groups at the time.^[27] Although these examples involve traditional media, as opposed to social media, such criticisms could easily be replicated on social media today.^[28] They illustrate the principle that critical social media comments pose a potential risk to the legitimacy of a specific court or tribunal. Although neither the High Court nor the RRT struggled to enforce their judgments even during the peak of their respective controversies, widespread reporting of their perceived bias is arguably damaging enough.

Loss of confidence in an individual judicial officer

Narrowest in scope is the risk of loss of public confidence in a particular judicial officer through questioning her or his integrity, impartiality or competence. There are instances of this phenomenon dotted throughout Australia’s legal history.^[29] For example, in the 1980s, the media was instrumental in creating widespread doubt over Lionel Murphy’s fitness for judicial office through the publication of documents suggesting criminal wrongdoing by his Honour.^[30] Although Murphy J passed away before Parliament could rule decisively on the matter, it is arguable that sufficient confidence was lost to militate against his Honour’s return to the High Court.^[31] More recently, a sustained media attack on Queensland Supreme Court Chief Justice Tim Carmody brought about his Honour’s resignation within a year of being appointed to the court.^[32] Both Carmody CJ’s impartiality and competency were the subjects of frequent and harsh questioning by the media, the Queensland Bar Association and fellow judicial officers.^[33] Given this precedent, there is good reason to surmise that critical comments made about a judicial officer on social media (and any response by the judicial officer) could threaten their reputation among the community. Depending on the severity of the criticism, substantiated or not, such comments could impact the legitimacy of the judicial officer and the extent to which the public abides by their judgments. Consequently, it is important to take precautionary measures to prepare to deal with these comments should they occur.

This section has considered how a malicious or critical comment about a judicial officer on social media could impact the public confidence in the judiciary by considering specific examples outside of social media. An appreciation of the scope of the potential damage that a critical or malicious social media comment has on the judiciary can help a court decide:

(i): which social media comments are the most important to address, and
(ii): which judicial officers or court staff and/or which jurisdictions should be involved in considering a response.

Moderating social media accounts: lessons learnt from business and government

Although considerable literature exists regarding whether judicial officers should use social media,^[34] very little thought has yet been dedicated towards responding to critical or malicious comments levelled at courts and judicial officers. Fortunately, there has been considerable literature available in this area in the corporate and government context. This section provides an overview of the common strategies that these sectors use when responding to criticism with a view to assessing how they can be useful to judicial officers.

Social media presents obvious benefits to the business world. It has the capacity to connect companies with previously unreachable customers in new and exciting ways. However, social media also poses significant threats that must be managed. At the heart of corporate social media management is the concern that, through social media, a single angry customer has “the equivalent of a soapbox and a megaphone at their disposal”.^[35] A failure to satisfactorily address a customer’s complaint may result in a company’s brand being irreparably tarnished. On the other hand, addressing a customer’s grievances quickly and thoughtfully could have positive consequences flowing beyond that individual customer extending to others viewing the comments online, too. Converting criticism to compliments is the focus of corporate complaint handling and the driving force behind social media moderation in these sectors.^[36] Admittedly, this is very different from the courts and the judiciary — which instead seek the public confidence. Fair complaints regarding the judiciary are expected and are part of business as usual. It is unfairly critical or malicious comments that deserve consideration. Nevertheless, given the large body of knowledge regarding handling of the public social media comments by non-legal sectors, the following information can be of some help.

Methods of moderation

Central to an effective corporate social media strategy is being prepared. As a first step, an organisation should consider the extent to which it intends to moderate its social media account. This means how the organisation intends to monitor the comments on its social media account and how it responds or does not respond to comments. A cautious organisation may wish to disallow user comments entirely so that only its staff can post on its social media account. Although such an approach does not truly embrace the social aspect of social media, it may be useful to organisations with a reasonably new social media presence. Engaging this strategy temporarily would allow an organisation to develop their protocols and procedures without the risk of reputational damage occurring in the meantime.^[37]

“Premoderation” is a slightly more engaging moderation strategy. In this method, all content is reviewed for suitability by the organisation prior to becoming publicly visible.^[38] Such an approach allows the organisation to take time to respond to inappropriate content effectively, although arguably still negates the spontaneous and interactive nature of social media.^[39] Additionally, unless the organisation has significant moderation resources at hand, there could be a considerable delay between a user posting a comment on an organisation’s account and it becoming publicly visible.^[40]

A “postmoderation” strategy allows user comments to be publicly visible as and when they are made. Staff then systemically review each comment and remove, amend or comment on those deemed problematic for whatever reason. This approach embraces the interactive aspect of social media, but requires organisations to respond quickly to any potentially damaging content.^[41] Depending on the volume of comments received, it also requires a significant resourcing commitment to ensure problematic content is swiftly addressed.

Finally, “reactive moderation” takes place only after a complaint is made via the social media account.^[42] Users may freely comment on an organisation’s social media account with a review of any comment only occurring if other users flag it as necessary. This approach is the least taxing on an organisation’s resources but leaves that organisation open to the risk that damaging comments may not be reported promptly, if at all.

It is worth noting that not all of the above styles of moderation are available across all social media. For example, on Twitter, there is no way to stop users from “mentioning” your account in their tweets. This means that, short of reporting that user for violating Twitter’s terms of use, there is no way to stop a user’s tweet that mentions an organisation from appearing publicly, even if the organisation has blocked that user.^[43] Regardless of which moderation strategy is employed, the organisation should ensure that it has the appropriate record-keeping procedures to make sure that all problematic social media comments are preserved for future reference.^[44]

Deciding which comments to address

Once an organisation has determined how it will moderate its social media account(s), it should decide what kinds of comments it considers are most threatening to its reputation. It is important to recognise that not all criticism is equally harmful and that responding to every such comment may be impractical or counterproductive. A useful three-step approach for businesses to identify the kinds of comments that should be addressed^[45] is as follows:

1.: The value of the complaining customer should be considered first, remembering that “not all customers are created equal”.^[46] As Wager is writing in the corporate context, value is measured in purely economic terms, the rationale being that the organisation’s limited moderation resources should be allocated to its most valuable clients.
2.: Risk is the second consideration. This requires examination of what the complainant is actually saying and a calculus of the potential damage stemming from the comment. For example, a complaint about a product’s dangerous safety defect will usually be more threatening than a comment regarding a broken link on a company’s webpage.
3.: Finally, an organisation should consider the “noise level” of a complaint — that is “how far the complaint could travel via social media and how many people could listen”.^[47] Factors such as how prolific, popular and credible the complainant is will all be relevant to determining how much “noise” their complaint may cause.

In the government context, the NSW Ombudsman^[48] has developed detailed guidelines on handling unreasonable complainant conduct. This guide identifies five major factors to consider in determining whether a complaint received through social media requires corrective action. These five factors are outlined below and are accompanied by a summary of the relevant considerations:

1.: Content Is the comment constructive criticism or is it just negative in an offensive way? Is the comment illegal or against the social media platform’s terms of use? Does the comment contain inappropriately obtained personal information? Is the comment grossly misinformed or inaccurate so that it could mislead?
2.: Visibility and credibility Is the comment accessible to a large number of people? Could the comment go viral?^[49] Is the comment, although inaccurate, plausible enough that people could give it attention?
3.: Apparent purpose/objective Is the comment sincerely made or does it appear that it was created with the intention to embarrass or humiliate its target? Does the comment incite others to engage in particular acts or omissions?
4.: Impact Could the comment significantly damage the organisation’s or a staff member’s reputation? If directed towards an individual, how does the individual feel about the comment? Does the existence of the comment contribute to an unsafe or unhealthy working environment? Does the comment have the potential to affect relationships within the organisation?
5.: Context What are the circumstances surrounding the making of the comment? Does the complainant voice a legitimate concern (even if the manner is disproportionate or unreasonable)? Is the comment made at a time when the organisation is under increased public or media scrutiny?

Of course, not all of the considerations in the two methods described above are always relevant. It is impossible to craft a definitive rubric to distinguish innocuous comments from threatening ones. However, these prompts provide a valuable starting point regarding relevant considerations when facing social media criticism. They can also be helpful to decide how to respond to the comment.

Determining how to respond

After the organisation has determined which comments it will address, it should develop guidelines about the content of any response and who should respond.^[50] As to the content of responses, four basic options are:^[51]

(i): mastery inactivity
(ii): deleting messages or engaging with the attacker
(iii): using the platform’s takedown procedures, and
(iv): reaching for the heavy legal weaponry.

Different circumstances will call for a response in the form of one of these four options, and it may be helpful to decide in advance which kind of comment calls for which kind of response or combination of responses.

“Masterly inactivity” may be effective where the user’s comment is trivial, ridiculous or clearly a joke. Of course, the line between “careless inactivity” and “masterly inactivity” is a fine one and picking the right approach is reliant on a thorough understanding of the nuances of social media communications. Although inaction may seem counterintuitive to trained lawyers,^[52] given the fast-paced nature of social media, it can sometimes be the wisest approach. In the case of a trivial comment, the comment may be quickly forgotten as it is “superseded by new content”.^[53] That is, a critical comment may well be lost within a sea of positive, neutral or entirely unrelated comments within a matter of hours and cause no further damage. A comment so far-fetched that no reasonable person would believe it may not damage the organisation nor warrant a reply.^[54] If a comment is a joke, the time-tested internet adage “don’t feed the trolls” likely still applies.^[55] Any attempt to respond to such a comment may draw more attention to it than it deserves.

When a user’s comment is clearly obscene or illegal, it may be appropriate to delete that user’s comments without warning or explanation (if possible) or to ask the social media to remove the comment. However, deleting a user’s complaint regarding, eg a faulty or unsafe product/service (substantiated or not) may be seen as evasive or an act of censorship. Such a response risks creating even more comments from a larger pool of irate users.^[56] Further, government organisations arguably have an obligation to listen and respond to complaints from users. This responsibility may come from statutory obligations to consult^[57] various anti-discrimination laws regulating the body’s online and offline behaviour^[58] or by the operation of the basic principles of representative democracy.^[59] Regardless, government organisations must be mindful that their moderation processes do not appear to be discriminatory in nature or are exercised for political purposes.^[60] Engaging with the commenter may be a wise step where the comment, while not obscene, malicious or illegal, has incorrect or misleading information. In such circumstances, it may be appropriate simply to respond and correct the facts, link to an accurate source and, if possible, rectify the situation.^[61] Government bodies need to be cautious to ensure that their comments in reply reflect the apolitical character of their office.^[62]

Lastly, the organisation will need to consider whether a public or private response is appropriate. If the comment is highly visible and contains grossly inaccurate and misleading information, a public response may be necessary to set the record straight.^[63] Any such public response should be unemotional and professional in nature so it will not further inflame the situation. Indeed, the public is often more concerned about the manner of the organisation’s response than the original comment.^[64]

If the comment is on a social media account with minimal traffic, a private response may be more appropriate to avoid bringing further attention to it.^[65] Of course, it is possible that traffic to the social media account could increase in the future. If the content is illegal or potentially defamatory, these private communications may also be used to request that the commenter take down the comment before the organisation takes further remedial action.^[66] This article discusses some of these remedial actions later on.

In the case of a comment that has “gone viral” or is otherwise considered particularly damaging, elements of both public and private response strategies may be necessary.^[67] This could include, for instance, a tactical public response by the organisation’s social media account(s) and/or more conventional media in addition to private messages to the complainant.^[68]

Transparency in comment moderation

Once an organisation develops a moderation strategy, it should be as transparent as possible in using it when operating its social media account(s). Organisations should publish their moderation guidelines in an accessible and easy way to locate on any social media account so that users know how their comments will be managed prior to posting.^[69] Such an approach helps ensure that users are not surprised if the organisation deletes, amends or responds to the comment. Further, if an organisation amends a user’s comment, the organisation may want to inform the user why they did so and, where appropriate, invite the user to resubmit a compliant comment.^[70] This approach is particularly important in the government context where the moderation process risks appearing biased or discriminatory.

Professional moderation services

An organisation should consider whether it will be their own staff who moderate their social media account(s) or whether they use a specialist social media moderation service to do so.^[71] Various products and services exist that can assist an organisation to moderate its social media presence.^[72] These choices will be determined primarily by the magnitude of the expected work involved in moderating the organisation’s social media account(s) and the availability of appropriately skilled employees.

Applying the lessons learnt: how should a judicial officer respond?

The previous section considered some of the common strategies that corporate and government sectors use to moderate comments on an organisation’s social media account(s). The respective goals of the two sectors to engage customers and consult with the community while preserving brand reputation are evident. Although there is some common ground between a judicial officer’s role and that of a corporate/government employee, there is also much difference.

The next section first considers the defining characteristics of the role of a judicial officer, stemming from professional and community expectations. It will then explore which of the strategies canvassed in the previous section are relevant to a judicial officer with a view to crafting a plan to be employed practically online.

Defining judicial values: how can social media affect them?

In discharging their professional duties, judicial officers “are entrusted, day after day, with the exercise of considerable power”, the exercise of which has an enormous impact on those who come before them.^[73] For the reasons previously discussed, such power cannot safely be “reposed in anyone whose honesty, ability or personal standards are questionable”.^[74] It follows that the public expects judicial officers to “behave according to certain standards both in and out of court” (emphasis added).^[75]

The AustralasianGuide to Judicial Conduct^[76] (Guide) is the authoritative text in the field of Australian judicial ethics. It is known as the “persuasive authority” on how a judicial officer may best meet professional and community standards in her or his daily conduct.^[77] The Guide identifies three primary principles by which all such conduct should be tested:^[78]

(i): impartiality
(ii): judicial independence, and
(iii): integrity in personal behaviour.

The potential threat that critical or malicious social media communications pose to each of these three principles will be briefly considered below.

At the heart of the first limb is the requirement that a judicial officer’s conduct, both in and out of court, “maintains and enhances public confidence in the judge’s impartiality”.^[79] A judicial officer must safeguard against any perception that her or his opinion is clouded by bias, a conflict of interest or prejudgment of an issue.^[80] The manner in which a judicial officer responds to critical social media comments poses a particular problem, as this remarkably public act arguably serves as a kind of window into a judicial officer’s mind, actual or not. For instance, a judicial officer’s decision to respond to a certain kind of complaint (or complainant) but not another may create a perception of bias or prejudgment in the eyes of the public. In fact, even in the absence of a written reply, a decision to remove a comment may raise similar concerns, if not properly substantiated.

A judicial officer must not only guard against influence from her or his own personal opinions and interests but also against the perceived influence of others. Central to this requirement is the constitutional independence from the other arms of government.^[81] However, similar pressures may also come from other sectors of the community, such as the media or “disgruntled parties, or special interest groups”.^[82] Again, social media raises a novel problem in this regard in that it potentially provides determined individuals with a very public vehicle through which to pressure a judicial officer. Further, any additional replies to a critical comment on a judicial officer’s social media account made by other members of the community may appear to associate the judicial officer with that person or organisation. Comments such as these, if not properly dealt with, risk undermining the independence of the judicial officer to whom they are directed.

The third relevant consideration is the judicial officer’s integrity as exemplified by their personal conduct. This is important in maintaining the public confidence that the judicial officer is capable of competently discharging the responsibilities that her or his role requires.^[83] Ways in which the public may measure a judicial officer’s fitness for the role include, for instance, her or his intellectual honesty, respect and observance of the law and discretion in personal and social relationships and activities.^[84] Once more, the public nature of social media serves as a potential threat to a judicial officer’s public standing. In particular, a judicial officer may need to ensure that the language and tone of any response to a critical comment is appropriate to a person entrusted with judicial office.

How should a judicial officer address critical social media comments?

Having now identified the guiding values of judicial office, the authors can now consider which of the strategies previously considered are appropriate for a judicial officer to employ.

Public or private account?

Although not a consideration in the corporate or government context, assuming a judicial officer operates their social media account(s) in their personal capacity, she or he may consider it wisest to have a private account. This setting restricts the amount of information about the account that is available to the general public (ie people whom the judicial officer has not actively accepted into their social network). On most social media platforms, a user may customise which content on their account is and is not publicly viewable.^[85] While this option may provide some degree of protection to a judicial officer, on many social media platforms (such as Facebook and Twitter), the general public may still contact the judicial officer through the private messaging mechanism.^[86] Although ostensibly private, such messages may still be captured and shared online by the public. Further, on some social media platforms (such as Twitter and Instagram), strangers may also “tag” a judicial officer in their own comments or pictures, notwithstanding that the judicial officer’s account is private.^[87] This would, at least superficially, associate the judicial officer with that content until the judicial officer has taken some form of corrective action.

As a further safeguard, a judicial officer may adopt a pseudonym on their social media account. This is a common tactic employed by many people who wish to limit their social media audience and protect their identity.^[88] While this strategy provides an extra layer of defence to a judicial officer’s online anonymity, it is not foolproof. For instance, it requires the utmost discretion from anyone who knows the judicial officer’s pseudonym, in both online and offline communications, to maintain the confidentiality of that pseudonym. Using a fake name on Facebook is technically a breach of its terms that may lead to account suspension,^[89] a further obstacle to a judicial officer wishing to employ this strategy.

Methods of moderation

If a judicial officer decides to make her or his social media account at least partially publicly viewable, she or he will need to determine how to moderate any public social media comments. Considering the three methods of moderation discussed above, a premoderation strategy seems most appropriate for judicial use. Such an approach, when it is available,^[90] allows the judicial officer to strictly moderate which comments are publicly visible while still allowing for some sense of public online presence. Additionally, if a judicial officer considers that she or he lacks the time or resources to moderate their social media account(s) properly, they may also consider using the professional moderating services previously described.

Deciding which comments to address

If a judicial officer receives a critical comment via social media (either publicly on their page, via the private messaging function, through being “tagged” in another user’s content, or through a member of the public posting a comment on another social media page, such as their own), she or he will need to determine how, if at all, to respond.

One of the first things that a judicial officer should consider doing when they learn about critical comments about them on social media is to take screenshots of the comments and ensure that they keep a copy of them.^[91] A screenshot is a copy of the visible content on a computer screen. If a judicial officer takes a screenshot, they will have a copy of the comments regardless of whether the comments are deleted.^[92]

The criteria previously explored, provided by the NSW Ombudsman, provide a useful framework to decide what other action to take. Although prescriptive criteria are impossible (and unadvisable) to provide in this context,^[93] a judicial officer may wish to consider the following questions when determining whether to address a social media comment:

1.: Content Who is the target of the criticism? As previously discussed, if the complainant’s comments are broad in nature and directed towards the judiciary as a whole, it may be that they do not actually pose a significant risk. Such comments may be more likely to be viewed as an irritated litigant expressing their displeasure, something that “the good sense of the community”^[94] may be trusted to ignore. Conversely, if the target of the complaint is the particular judge or a court/tribunal, the potential harm may be greater, particularly where that complaint alleges plausible bias or wrongdoing. Does the comment contain illegal content (such as a threat or personal information) or is it otherwise misleading or inaccurate? Is the comment directed towards a particular matter before the judicial officer, or is it general?
2.: Visibility and credibility Is the comment publicly visible on a judicial officer’s page, or is it a private comment? Keep in mind that a screenshot of a private message may still be shared and runs the risk of going “viral”, even if not responded to. Is the comment/allegation so outrageous that no reasonable person is likely to believe it?
3.: Apparent purpose/objective Is the comment sincerely made or does it appear that it was created with the intention to embarrass or humiliate its target?
4.: Impact Could the comment significantly damage the reputation of the judicial officer or a court?
5.: Context Does the complainant voice a legitimate concern? Is the complainant involved with a matter that is currently (or was previously) before the judicial officer? Is the complainant a credible individual?

Admittedly, the answers to some of these questions are speculative in nature. However, some online research could make them less so. For example, a court could research the complainant. It could investigate whether the complainant appeared in the court in which they posted the comment or appeared before the judicial officer who made the comment. If the answer is “yes” to either, then it may be more likely that the complainant voiced a legitimate concern. It is important to note that if the complainant used a fake name on their social media account, instead of their real one, it may be difficult or impossible to find information about them.

A judicial officer, or a court, may not know that critical or malicious comments were written about them. They can learn about these comments by using different programs. A judicial officer or a court can create Google alerts, which will inform them when their name is mentioned online.^[95] Judicial officers can use Hootsuite’s “social media monitoring” function to see what many social media platforms post about them.^[96] Judicial officers can also use the program Social Mention to see what is posted about them on several social media sites.^[97]

Determining how to respond

A judicial officer can either do nothing when faced with a critical or malicious comment on social media, or respond. Many people may be able to see the posts and the judicial officer’s response.^[98] If the judicial officer responds, this can incite further negative comments.^[99] As discussed above, the four broad options can be summarised as follows:

(i): inactivity
(ii): deleting or responding to the complainant
(iii): using the social media platform’s takedown mechanisms, and
(iv): employing criminal or civil mechanisms.

If a complaint relates to a matter currently or previously before the court, it is a well-established principle that a judicial officer does not comment publicly on it, even to clarify an apparent ambiguity.^[100] In circumstances where such a comment is likely to occasion significant harm to the judicial officer or court, it may be appropriate for the chief justice (or comparable head of jurisdiction) to respond formally on behalf of the court.^[101] This approach may be particularly important where the comment appears likely to create significant publicity.

If a social media comment instead refers to a judicial officer’s personal conduct, and is likely to be publicly visible to a significantly large audience, action of some kind may be appropriate. If the comment contains an accusation about a judicial officer that is so far-fetched that it is unlikely to be believed, it may be appropriate to delete the comment (if possible) or merely ignore it. If the comment was made on the judicial officer’s social media page, then the judicial officer can remove it right away, or right after taking screenshots of the comment.^[102] Even so, people may have seen the comment before it was removed and may continue to circulate the comment after its removal.

However, if the comment is not immediately implausible, it may require some form of response. The judicial officer can send a private personal message to the person who posted the comment by social media^[103] or by email^[104] and ask the person to remove the comment. It can be risky to contact the person who posted the comment. Such contact may cause the person who wrote the comment to write further comments or comments that are more critical and/or malicious.

The guidance previously provided can assist to decide whether such a response should be made privately and/or publicly. Of course, a judicial officer would ensure that the content of any written response adopts a manner and tone that maintains the impartiality, independence and integrity of their office. Additionally, the legal mechanisms discussed in the next section may also be appropriate for use in this circumstance.

Finally, members of the public may also physically threaten judicial officers on social media. Although this is not a new phenomenon,^[105] social media offers the ability for people to post their threat to a judicial officer to an extremely large audience.^[106] A judicial officer (and anyone who sees such comments) should inform the police about any physical threats immediately^[107] and take screenshots of them to give to the police. Members of the public can also post “personal information” about a judicial officer on social media, such as a judicial officer’s physical address, and millions of people can see it.^[108]

Transparency in comment moderation

One way to ensure that a judicial officer’s moderation of their social media account maintains their impartibility, independence and integrity is through publishing a comment moderation policy on their social media account. Such a policy forewarns users about how any comments will be assessed and responded to, safeguarding against the perception that the judicial officer treated any two commenters differently.^[109] This section discussed the actions that judicial officers can take when they learn of comments that are critical or malicious about them on social media. It is also important to consider whether one of these actions involves legal actions or referring to a judicial social media policy.

How best to protect judicial officers: statutory offences and judicial social media policies

A judicial officer can also use legal and non-legal safeguards in order to draw the greatest benefit from social media while minimising the potential harm to her or his public image.

Legal protections: criminal and civil mechanisms

Defamation

A judicial officer may be able to commence defamation proceedings against a person who made critical or malicious posts about them. In many respects, a judicial officer who commences such proceedings is similar to other parties who start defamation proceedings against parties who are not judicial officers. However, a judicial officer must be mindful of not appearing overly sensitive to the public perception of her or him. Too great a concern about the judicial officer’s public approval may threaten the public confidence in the judicial officer’s ability to act, in their judgment, “without fear or favour, affection or ill will”.^[110]

Further, if judicial officers commence defamation proceedings, the public may be less likely to criticise judicial officers reasonably.^[111] Nevertheless, people could already have seen the posts prior to the judicial officer commencing the lawsuit,^[112] so the damage to the public confidence in the judiciary may have already happened. Generally, although some judicial officers have been successful with defamation proceedings,^[113] judicial officers may want to avoid this cause of action, except when the circumstances are exceptional.^[114]

Criminal offences

Scandalising the court

As previously discussed, scandalising the court remains a common law offence in Australia and continues to be prosecuted to this day. Its existence may dissuade members of the public from making baseless accusations about judicial officers or the judiciary as a whole. Of course, for the reasons already canvassed, this offence is vulnerable to criticism regarding its unfair stifling of legitimate public critique of the judiciary. For this reason, prosecutions under it may in fact have a net negative effect on the public confidence in the judiciary. Nonetheless, it remains a safeguard for judicial officers who find themselves the subject of malicious attacks on social media.

Criminal Code Act 1995 (Cth) and State criminal offences

A number of criminal offences may also be successfully deployed in defence of a judicial officer the subject of attacks on social media.^[115]

Although this article will not consider these offences, it is important to note that various criminal avenues exist if a judicial officer determines that the police should be made aware of a particularly malicious or threatening comment.

A unique Criminal Code offence

People who make critical or malicious comments about judicial officers on social media could also face a new criminal code offence for exactly this situation.^[116] This offence could help encourage the public not to take such action.

Social media takedown mechanisms

The judicial officer can report the comments to the social media site that they were posted on and ask for the posts to be taken down.^[117] Twitter has a form that allows people to report abusive or harassing behaviour.^[118] Twitter can then require the person to delete the comments or take other serious action.^[119]

Facebook users can also report comments that breach its policies. Facebook can delete the comments and tell the person who posted them not to post them again. They can also remove the user’s access to Facebook or their access to certain parts of Facebook.^[120] If a judicial officer reports the comments to the social media site and asks the social media site to help, this does not guarantee that the social media site will help, nor does it guarantee that the social media site will act quickly to assist the judicial officer.

Policy approach: Crafting a judicial social media policy

The legal mechanisms described above all operate against a person who has made a potentially critical or malicious comment about a judicial officer on social media. Although such legal mechanisms, if successfully deployed, provide a strong defence to judicial officers, they rely on the cooperation of several other independent actors, such as the courts and social media sites themselves. This kind of cooperation may not always be possible. Even once secured, the various actors may be difficult to coordinate and slow in response time. Further, as already discussed, these legal mechanisms may actually lower the public confidence in the judiciary by painting a particular judicial officer (or the judiciary as a whole) as reactionary and resistant to legitimate critique.

An alternative approach is the development of a judicial social media policy, much like those adopted by the corporate and government sectors referenced previously. Many such policies exist for judicial officers in other jurisdictions,^[121] and such a policy could be developed and incorporated into the Guide.^[122] The policy would operate simultaneously to the existing legal protections, providing a further safeguard for judicial officers. Additionally, it would empower judicial officers to consistently address problematic social media comments without the delay and coordination inherent in the legal mechanisms referenced above.

Conclusion

The beginning of this article provided a real-life example of a tweet that was critical of the Family Court of Australia. This article provides some valuable information to consider regarding what should be done in a similar situation, but it does not provide exact answers regarding the actions to take. Research that could help provide some answers, or at least additional valuable information to consider, involves giving surveys to people who see critical or malicious comments on social media about the judiciary to ask about their thoughts regarding the judiciary at that time. It also involves providing surveys to these same people again once the court takes action to learn how the court’s actions regarding the critical or malicious comments impacted them.

This article considered:

(a): the offence of scandalising the court
(b): the concept of confidence in the judiciary
(c): social media moderating strategies that different non-legal sectors use and it applied them to the judiciary, and
(d): what protections, both statutory and policy based, may be used to punish people who write malicious comments about judicial officers on social media.

It advocated for courts to take a precautionary approach in this area, so that it will be easier to deal with such comments when they are known. While each critical or malicious comment about the judiciary on social media should be considered in its own right, the guiding principles that this article presented may be of benefit.

^[1]This article is dedicated to Brett Osler and Professor Henry Ekert.

^[2]Marilyn Bromberg, PhD, LLB (Dist), BBA (Hon), Grad Cert University Teaching, Senior Lecturer, The University of Western Australia Law School, and practising lawyer.

^[3]Andrew Ekert, B Mus, JD, Deputy-Associate, Federal Circuit Court.

^[4]D Healy, “When social media is used maliciously or contemptuously to denigrate, threaten or cyberstalk judicial officers or tribunal members: the issues involved, can judicial officers and tribunal members be protected, and the potential for government response”, speech delivered at A Symposium: challenges of social media for courts & tribunals, 26 May 2016, Melbourne.

^[5]R Sackville, “How fragile are the courts? Freedom of speech and criticism of the judiciary” (2005) 31 Monash University Law Review 191 at 194.

^[6]For a definition of social media, see: P George et al, Social media and the law, 2nd ed, LexisNexis Butterworths, 2016, p 2–4; N Meyer, “Social media and the courts: innovative tools or dangerous fad? A practical guide for court administrators” (2014) 6 International Journal for Court Administration 1 at 3–5; Comite Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110 [133]–[142] (Beach J); L Bartels and J Lee, “Jurors using social media in our courts: challenges and responses” (2013) 23 JJA 35 at 36–37.

^[7]R v Almon (1765) Wilm 243 at 270.

^[8]Gallagher v Durack (1983) 152 CLR 238 at 243.

^[9]D Williams, “The courts and the media: what reforms are needed and why” (1999) University of Tasmania Law Review 4 at 21.

^[10]See, eg R v Hoser [2001] VSC 525; DB Mahaffy & Associates v Mahaffy [2015] NSWSC 1959.

^[11]According to the research of the authors of this article in November 2016.

^[12]B Sinha, “Justice Katju apologises for slamming Supreme Court judges on Facebook”, Hindustan Times, 10 December 2016 at www.hindustantimes.com/india-news/justice-katju-apologises-to-sc-for-slamming-judges-onfacebook/ story-72p0gldqxCMBh5qrCw4u5I.html accessed 28 July 2021; “SC issues contempt notice to Katju for ‘scandalising judges’”, Times Now, 11 November 2016 at www.timesnow.tv/india/video/sc-issues-contempt-notice-to-katju-for- %E2%80%98scandalising%E2%80%99-judges/51764 accessed 28 July 2021; “Soumya rape, murder case: SC issues contempt notice to Markandey Katju over his blogs”, The Indian Express, 11 November 2016 at www.newindianexpress.com/ nation/2016/nov/11/sc-issues-contempt-notice-to-katju-for-allegedly-scandalising-court-judges-1537435.html accessed 28 July 2021. For examples of American judges who have made contentious comments on social media, see: S Jones, “Judges, friends and Facebook: the ethics of prohibition” (2011) 24 The Georgetown Journal of Legal Ethics 281 at 294; S Nelson and J Simek, “Feature: Attention: The perils of social media for judges” (2014) 57 Res Gestae 27–28; M Glowicki, “Judge Olu Stevens again removed from case”, Courier-Journal, 12 January 2016 at www.courier-journal.com/story/news/ crime/2016/01/11/judge-againremoved-case-chief-justice/78645530/ accessed 28 July 2021.

^[13]D Williams, “The courts and the media: what reforms are needed and why?” (1999) 1 University of Technology Sydney Law Review 13 at 21.

^[14]Gallagher v Durack (1983) 152 CLR 238 at 248 (Murphy J).

^[15]See, eg Sackville, above n 5, at 198; O Litaba, “Does the ‘offence’ of contempt by scandalising the court have a valid place in the law of modern day Australia?” (2003) 8 Deakin Law Review 113 at 145–146; M Pearson, “Scandalising media freedom: resurrection of an ancient contempt” (2008) 14 Pacific Journalism Review 64 at 75–76.

^[16]See, eg Law Commission, Contempt of court: scandalising the court, Law Commission Report No 335, 2012; Law Commission, Contempt in modern New Zealand, Issues Paper No 36, 2014, pp 56–64; Australian Law Reform Commission, Contempt, Report No 35, 1987 at [425]; Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, Project No 93, 2003, p 116.

^[17]Australian Law Reform Commission, Contempt, Report No 35, 1987 at [425]; see also Sackville, above n 5 at 198; Litaba, above n 15, at 124–135.

^[18]Gallagher v Durack (1983) 152 CLR 238 at 243.

^[19]See C Dyer, “Archaic law used against critic of ‘legal mafia’”, The Guardian, 1 October 1999 at www. theguardian.com/uk/1999/oct/01/claredyer accessed 28 July 2021; Law Commission, Contempt in modern New Zealand, Issues Paper No 366, 2014, at [6.38]–[6.57]; cf, D Tan, “Any risk will do — the new law on scandalising contempt in Singapore” (2016) The Law Gazette 29.

^[20]Law Commission, above n 19 at [6.54]–[6.57].

^[21]For example, in DB Mahaffy & Associates v Mahaffy [2015] NSWSC 1959, Schmidt J found that “Mr Mahaffy’s conduct was calculated to undermine public confidence in the District and Supreme Courts” at [48].

^[22]Mabo v The State of Queensland (No 2) (1992) 175 CLR 1.

^[23]M Kirby, “Attacks on judges: a universal phenomenon” (1998) 81 Judicature 238 at 240.

^[24]S Kneebone, “Is the Australian Refugee Review Tribunal ‘institutionally’ biased?” in F Crépeau et al (eds), Forced migration and global processes: a view from forced migration studies, Lexington Books, 2006, p 237.

^[25]ibid p 255.

^[26]ibid.

^[27]See, eg S Stephen, “Ruddock’s refugee tribunal biased” Green Left Weekly, 28 August 2002 at www.greenleft.org. au/content/ruddocks-refugee-tribunal-biased, accessed 28 July 2021.

^[28]Some Australian courts have been the subject of critical or malicious comments on social media to date. For example: Healy, above n 4.

^[29]J Thomas, Judicial ethics in Australia, 3rd edn, LexisNexis, 2009, pp 21–72.

^[30]Australian Government, National Archives of Australia, The Age tapes and the investigation of Lionel Murphy, 1984.

^[31]Thomas, above n 29, pp 1–3.

^[32]See generally, R Ananian-Welsh, G Appleby and A Lynch, The Tim Carmody affair: Australia’s greatest judicial crisis, UNSW Press, 2016.

^[33]J Robertson, “Tim Carmody accused of ‘ducking the issue’ over fellow judge’s criticism”, The Guardian, 30 March 2015 at www.theguardian.com/australia-news/2015/mar/30/tim-carmody-accused-of-ducking-the-issue-over-fellow-judges-criticism, accessed 29 July 2021; M Eaton, “Queensland Chief Justice Tim Carmody roundly condemned by retiring Supreme Court justice”, ABC, 27 March 2015 at www.abc.net.au/news/2015-03-26/ queenslands-chief-justice-roundly-condemned-by-retiring-justice/6350074, accessed 29 July 2021.

^[34]See, eg J Gibson, “Judges, cyberspace and social media” (2015) 12(2) TJR 237; W Martin, “Freedom of the press and the courts”, speech delivered at the Judicial Conference of Australia Colloquium 2015, 9 October 2015, Adelaide; M Krawitz, “An examination of social media’s impact upon the courts in Australia”, PhD (Law) Thesis, Murdoch University, 2014, pp 26–64.

^[35]S Sadowski, “Using social media in customer service and support” in R Wollan, N Smith and C Zhou (eds), The social media management handbook: everything you need to know to get social media working in your business, John Wiley & Sons, 2010, p 142.

^[36]T Wager, “Social media: responding to customer complaints” in R Wollan, N Smith and C Zhou (eds), Social media management handbook, John Wiley & Sons, 2010, p 161.

^[37]See, eg Loddon Shire Council, Social media strategy, 2013 at [7.3.1].

^[38]Interactive Advertising Bureau Australia, “Best practice for user comment moderation: including commentary for organisations using social media platforms”, IAB Australia, 17 July 2013, Appendix A at https://iabaustralia.com.au/guideline/best-practice-for-user-content-moderation/, accessed 29 July 2021.

^[39]Department of Finance and Deregulation, Australian Government Information Management Office, Engage: getting on with Government 2.0, Government 2.0 Taskforce Report, 2009, p 19 at https://apo.org.au/sites/default/files/resource-files/2009-12/apo-nid19954.pdf, accessed 29 July 2021.

^[40]ibid.

^[41]Interactive Advertising Bureau Australia, above n 38, p 13.

^[42]Interactive Advertising Bureau Australia, above n 38, p 13.

^[43]Twitter Help Center, “About replies and mentions”, Twitter, Inc. at https://support.twitter.com/articles/14023, accessed 29 July 2021.

^[44]NSW Ombudsman, Managing unreasonable conduct by a complainant workbook, 2020, p 112 at www.ombo.nsw.gov.au/__data/assets/pdf_file/0004/3568/MUCC-2020_Workbook.pdf, accessed 4 August 2021.

^[45]Wager, above n 36, p 163.

^[46]ibid p 165.

^[47]ibid p 166.

^[48]NSW Ombudsman, above n 44, pp 110–111.

^[49]Viral means “quickly and widely spread or popularized especially by person-to-person electronic communication”: Merriam-Webster Dictionary at www.merriam-webster.com/dictionary/viral accessed 29 July 2021.

^[50]Interactive Advertising Bureau Australia, above n 38, p 11.

^[51]D Smith, A Sutin and L Kaneff, “How should I respond to Facebook attacks?”, Managing Intellectual Property, 27 March 2012 at www.managingip.com/Article/3002260/How-should-I-respond-to-Facebook-attacks.html, accessed 29 July 2021.

^[52]ibid.

^[53]ibid.

^[54]NSW Ombudsman, above n 44, p 111.

^[55]Smith, Sutin and Kaneff, above n 48. Note: An online “troll” is normally “an internet user who takes on a fake identity, which they then use to cause disruption and trigger conflict among others for their own amusement” and “[t]rolling behaviours typically include deliberately posting inflammatory comments and argumentative messages in an attempt to provoke, disrupt and upset others”: E March, “Don’t feed the trolls really is good advice — here’s the evidence”, The Conversation, 7 October 2016 at http://theconversation.com/dont-feed-the-trolls-really-is-good-advice-heres-the-evidence-63657, accessed 29 July 2021.

^[56]Smith, Sutin and Kaneff, above n 48.

^[57]See, eg A Howard, “Connecting with communities: how local government is using social media to engage with citizens”, ANZSOG Institute for Governance at the University of Canberra and Australian Centre of Excellence for Local Government, August 2012, p 35 at www.howardpartners.com.au/work-in-progress/Howard_Partners_Connecting_with_Communities_Report.pdf, accessed 29 July 2021.

^[58]See, eg Equal Opportunity Act 2010 (Vic); Disability Discrimination Act 1992 (Cth); Australian Public Service Commission, “APS Values and Code of Conduct in practice”, Australian Public Service Commission, 2016 at [1.2.18] at www.apsc.gov.au/publication/aps-values-and-code-conduct-practice, accessed 29 July 2021.

^[59]See generally, C Saunders, The Constitution of Australia: a contextual analysis, Hart Publishing, 2011, pp 109–145.

^[60]ACT Government, “ACT Government social media policy guidelines”, Version 1, March 2012, p 25 ; Sackville, above n 5, at 194.

^[61]ACT Government, above n 60, p 24.

^[62]See, eg Australian Public Service Commission, “APS Values and Code of Conduct in practice”, Australian Public Service Commission, 2016 at www.apsc.gov.au/publication/aps-values-and-code-conduct-practice, accessed 29 July 2021.

^[63]NSW Ombudsman, above n 44, p 112.

^[64]ibid.

^[65]ibid.

^[66]ibid.

^[67]ibid.

^[68]ibid.

^[69]See ACT Government, above n 57, p 25; Queensland Government Chief Information Office, “Principles for the official use of social media networks and emerging social media”, Queensland Government Enterprise Architecture, December 2017 at [2.2.4] at www.qgcio.qld.gov.au/documents/principles-for-the-use-of-social-media, accessed 29 July 2021; Interactive Advertising Bureau Australia, above n 35, p 11; Smith, Sutin and Kaneff, above n 51. Courts do so also, see, eg Supreme Court of Tasmania, “Social media policy”, Supreme Court of Tasmania, at www.supremecourt.tas.gov.au/the-court/social-media-policy/, accessed 29 July 2021.

^[70]ACT Government Social Media Policy Guidelines, above n 60, p 25.

^[71]Interactive Advertising Bureau Australia, above n 38, p 11.

^[72]See, eg Google Alerts, Social Mention, Technocrati, TweetBeep, Boardtracker, Dialogix and The Search Monitor.

^[73]Thomas, above n 29, pp 8–9.

^[74]ibid.

^[75]ibid.

^[76]Australasian Institute of Judicial Administration Incorporated, Guide to Judicial Conduct, 3rd edn (rev), 2022.

^[77]Thomas, above n 29, p 2.

^[78]The Australasian Institute of Judicial Administration Incorporated, above n 76, at [2].

^[79]ibid at [3].

^[80]ibid at [2.1], and the wealth of case law on judicial bias, eg British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [331]; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 562.

^[81]ibid at [2.2.1]; see further, Saunders, above n 59, pp 185–220.

^[82]ibid at [2.2.2].

^[83]ibid at [2.3].

^[84]ibid.

^[85]I Wise, “How to manage your social media privacy settings”, The University of Texas at Austin: Center For Identity, 2017.

^[86]Facebook, “Send messages” at www.facebook.com/help/326534794098501/, accessed 30 July 2021; Twitter, “About Direct Messages” at https:// support.twitter.com/articles/14606. accessed 30 July 2021.

^[87]Instagram, “Can a person I blocked still mention me?” at https://help.instagram.com/112436292285729, accessed 30 July 2021; Twitter, “How to block accounts on Twitter” at https://support.twitter.com/articles/117063, accessed 30 July 2021.

^[88]Chayn CIC, “Do it yourself online safety” at https://chayn.gitbook.io/diy-online-safety/, accessed 30 July 2021.

^[89]Facebook, “What names are allowed on Facebook?” (2017) at www.facebook.com/help/112146705538576?helpref=f aq_content, accessed 30 July 2021.

^[90]See, eg Facebook, “How do I stop people from posting on my profile on Facebook?” at www.facebook.com/help/115469971 891543/?ref=u2u, accessed 30 July 2021.

^[91]E Angelotti, “How to handle personal attacks on social media”, Poynter Institute, 20 August 2013 at www.poynter.org/2013/ how-to-handle-personal-attacks-on-social-media/219452/, accessed 30 July 2021.

^[92]For information on how to take a screenshot, see: Microsoft Windows, “Copy the window or screen contents” at https://support.microsoft.com/en-us/topic/copy-the-window-or-screen-contents-98c41969-51e5-45e1-be36-fb9381b32bb7, accessed 30 July 2021; Apple, “Take a screenshot on Your Mac” at https://support.apple.com/en-au/HT201361, accessed 30 July 2021.

^[93]Thomas, above n 29, p 3.

^[94]Gallagher v Durack (1983) 152 CLR 238 at 243.

^[95]Angelotti, above n 91; Law Institute Victoria, “Dealing with negative feedback: how to handle it”, LIV Business Letter at www.liv.asn.au/PDF/Practice-Resources/Social-Media/Dealing-with-negative-feedback.aspx accessed 3 August 2021.

^[96]A Pressault, “Online reputation management: extremely important and surprisingly easy”, Business 2 Community, 25 June 2014 at www.business2community.com/social-media/online-reputation-management-extremely-important-surprisingly-easy-0926398, accessed 2 August 2021.

^[97]SocialMention at http://socialmention.com/about/, accessed 1 August 2021. For a list of additional programs that judicial officers can use to check their social media reputation, see: M O’Connor, “10 top social media monitoring & analytics tools”, Tweak Your Biz, 18 September 2018 at http://tweakyourbiz.com/ marketing/2013/03/06/10-top-social-media-monitoring-analytics-tools/, accessed 2 August 2018.

^[98]“How to deal with negative comments on your brand’s page”, Adweek, 29 September 2014 at www. adweek.com/socialtimes/how-to-deal-with-negative-facebook-comments/301063, accessed 30 July 2021.

^[99]Angelotti, above n 91; S Dekay, “How large companies react to negative Facebook comments” (2012) 17 Corporate Communications: An International Journal 289 at 294.

^[100]The Australasian Institute of Judicial Administration Incorporated, above n 76, at [5.6.2]; Thomas, above n 29 p 46.

^[101]The Australasian Institute of Judicial Administration Incorporated, ibid; see also M Warren, “The Chief Justice’s response to media criticism of judges”, Supreme Court of Victoria, 7 December 2016 at www.supremecourt.vic.gov.au/news/the-chief-justices-response-to-media-criticism-of-judges, accessed 2 August 2021.

^[102]“How to deal with negative comments on your brand’s page”, above n 98; M Pantic, “How to handle negative comments about you and your business”, Social Media Today, 22 July 2013 at www.socialmediatoday.com/news/how-to-handle-negative-comments-about-you-and-your-business/463390/, accessed 2 August 2021.

^[103]Angelotti, above n 91.

^[104]Law Institute Victoria, above n 92.

^[105]The Australasian Institute of Judicial Administration Incorporated, above n 76, pp 5–6.

^[106]A Henson-Armstrong, “Suffering in silence: the dark side of judging in 2013” (2013) 63 Syracuse Law Review 253 at 267. This occurred when Peter James Jamieson allegedly threatened Tasmanian Magistrate Michael Brett on Facebook. Jamieson posted on his Facebook page a photograph of shells from a shotgun and beside it the words: “Thanks honourable Judge Brett, you’ve really made things so good for my family. I’ll get you”. See: ABC News, “Man accused of threatening to ‘get’ Tasmanian Magistrate in Facebook post”, ABC News (online), 14 January 2015 at www.abc.net.au/news/2015-01-14/ man-accused-of-threatening-tasmanian-magistrate-on-social-media/6017676, accessed 3 August 2021.

^[107]Angelotti, above n 91.

^[108]Henson-Armstrong, above n 103. For example, Santo Bonacci posted the email addresses of the chief judge of the County Court of Victoria, his associate and four of his Honour’s staff members on Facebook and told the public to contact them. See: “Self-styled ‘astro-theologist’ Santo Bonacci in contempt of court for Facebook campaign against judge”, The Age, 7 April 2015 at www.theage.com.au/victoria/selfstyled-astrotheologist-santo-bonacci-in-contempt-of-courtfor- facebook-campaign-against-judge-20150404-1mekeb.html, accessed 3 August 2021; S Deery, “Abusive fine-dodger guilty of contempt of court after attacking judge”, The Herald Sun, 7 April 2015 at www.heraldsun.com.au/news/law-order/ abusive-finedodger-guilty-of-contempt-of-court-after-attacking-judge/news-story/daac08b9b79d290669744092527d086f, accessed 3 August 2021.

^[109]To read about how Australian Courts have dealt with this issue to date, see: M Bromberg-Krawitz, “Issues paper for a Symposium: Challenges of social media for courts and tribunals”, Australasian Institute of Judicial Administration and the Judicial Conference of Australia, 26–27 May 2016, Melbourne, available at https://aija.org.au/wp-content/uploads/2017/07/Krawitz.pdf, accessed 3 August 2021.

^[110]Thomas, above n 29, p 10.

^[111]R Sackville, “How fragile are the courts? Freedom of speech and criticism of the judiciary” (2005) Federal Judicial Scholarship at 11. Also see A Sahore, “An awkward situation: the courts’ approach to a judicial officer suing for defamation”, Honours Thesis, University of Sydney Law School, 2014.

^[112]Angelotti, above n 91.

^[113]Thomas, above n 29, pp 46–48.

^[114]ibid, pp 46–58.

^[115]See further, NSW Ombudsman, above n 44, p 113.

^[116]G Brandis, “Social media and courts & tribunals: a view from government”, speech delivered at Australasian Institute of Judicial Administration and the Judicial Conference of Australia, A Symposium: Challenges of Social Media for Courts & Tribunals, 26–27 May 2016, Melbourne.

^[117]Angelotti, above n 88.

^[118]Twitter, “Staying safe on Twitter and sensitive content”, at https://help.twitter.com/en/forms/safety-and-sensitive-content/abuse, accessed 3 August 2021.

^[119]S Doshi, “Policy and product updates aimed at combating abuse”, Twitter, 21 April 2015 at https://blog.twitter.com/2015/ policy-and-product-updates-aimed-at-combating-abuse, accessed 3 August 2021.

^[120]Facebook, “What happens when I report something to Facebook?”, at www.facebook.com/help/103796063044734, accessed 3 August 2021.

^[121]See, eg American Bar Association, “Formal Opinion 462: Judge’s use of electronic social networking media”, American Bar Association, 21 February 2013 at www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam. pdf, accessed 3 August 2021; British Columbia Workers’ Compensation Appeal Tribunal, “WCAT Member Social Media and Social Networking Policy”, which is Appendix 3 in Canadian Centre for Court Technology, “The use of social media by Canadian judicial officers”, May 2015, at www.cacp.ca/law-amendments-committee.html?asst_id=844, accessed 3 August 2021. .

^[122]See generally, Australasian Institute of Judicial Administration, above n 76. It is noted that in Australia, there is the Federal Court of Australia, “Guidelines for Judges about using electronic social media”, 6 December 2013, however, it does not address what judicial officers should do if a critical or malicious comment about them is posted on social media.