Right here waiting for you: the new social media chapter in the Australian Guide to Judicial Conduct[1]
The courts have existed for hundreds of years. Social media has existed for less than two decades. When the two collide there is potential for negative repercussions upon the public’s confidence in the judiciary. This article considers the chapter on social media that was included in the third edition of the Australian Guide to Judicial Conduct. It argues that the chapter may help to improve the public’s confidence in the judiciary.
Introduction
Arguably, one needs only to read the following to understand why guidelines for judges[3] regarding their social media use may be helpful. In France, two judges tweeted the following during a hearing (translated into English): tweet one – “legal question … if any exasperated assessor/magistrate strangles his chief justice during a hearing, how much would that be worth”; tweet two – “I haven’t been listening to anything being said for the past two hours”.[4] These tweets appear to show judicial officers who lack integrity and have a significant disregard for the judicial process. This could, understandably, negatively impact upon the public’s confidence in the judiciary.[5] Unfortunately, this situation was not an isolated occurrence. Judges worldwide have made inappropriate comments on social media that may negatively impact upon the public’s confidence in the judiciary.
In the UK, a magistrate for 16 years and former mayor, Professor Steve Molyneux, tweeted[6] that he was going to hand down a sentence.[7] A fellow magistrate learned about the tweets and informed the relevant people about it. Professor Molyneux resigned. He stated: “I did nothing wrong, I did nothing illegal. I didn’t mention any names or write about anything in the retiring room. All I wrote was in the public domain already.”[8] Indeed, Professor Molyneux may not have written anything illegal, nor included the names of anyone in the courtroom, nor written anything whilst in the retiring room, nor written anything in the public domain. Yet, his actions may have negatively impacted upon the public’s confidence in the judiciary for many reasons — including that the former magistrate did not show the respect for his position that it deserves.
In Greece, a judicial officer criticised austerity measures on his blog and the Supreme Civil and Criminal Court disciplined him.[9] In Canada, an Ottawa Provincial Court judge retired in late 2014 due to a comment she made on Facebook about two other judges. She stated the judges’ initials and complained that one of the judges gave a woman a reduced sentence because she had cancer. Had the judge who made the Facebook comment not retired, she would have had to participate in a disciplinary hearing.[10]
Several members of the American judiciary have experienced ethical challenges when they used social media. This caused some to request guidance from American State ethics committees and similar organisations,[11] which then created guidelines on the topic[12] that are not usually binding.[13] In 2009, the New York Advisory Committee on Judicial Ethics was the first American State (known to the author) to release publicly available guidance for judges regarding social media use, including whether a judge can use social media.[14] The American Bar Association also produced guidelines for judges regarding social media use in 2013.[15] The Senior Presiding Judge for England and Wales and the Senior President of Tribunals published guidelines for judges about blogging in 2012,[16] and the Judiciary of England and Wales amended their Guide to Judicial Conduct to discuss social media in 2013.[17] Table 1 lists the guidelines for judges regarding social media use in Australia, the UK and the US. The table may serve as a useful reference for the judiciary and researchers in this area.
Over 20 guidelines for judges regarding social media use were released in the US from 2009 until 2016. By contrast, until 2017 there was only one set of guidelines in this area in Australia known to the author. The Federal Court of Australia released Draft Guidelines for Judges about Electronic Social Media in 2013.[18] For many years, there had been requests that uniform guidelines be created for Australian judges regarding social media use or that the Guide to Judicial Conduct (“AIJA Guide”) be modified to include such guidelines.[19] As such, in 2017 a chapter was added to the third edition of AIJA Guide entitled “Social Media” (“Social Media chapter”).[20]
This article argues that the Social Media chapter can help maintain the public’s confidence in the judiciary. Specifically, it explains what the AIJA Guide is, gives a brief definition of social media, discusses the Social Media chapter generally and then considers some of the specific issues in the chapter.
The AIJA Guide
The AIJA Guide:[21]
provides principled and practical guidance to judges as to what may be an appropriate course of conduct, or matters to be considered in determining a course of conduct, in a range of circumstances. It is by maintaining the high standards of conduct to which the Guide aspires that the reputation of the Australian judiciary is secured and public confidence in it maintained.
Some of the topics addressed in the third edition of the AIJA Guide include judicial independence, the judge as a mediator, public comment by judges, personal welfare and political activities. The first edition of the Guide was published in 2002 due to the Council of Chief Justices of Australia and New Zealand seeking a document that contained principles applicable to judicial conduct.[22] A second edition of the Guide was published in March 2007 and a third edition was published in 2017 (and revised in 2022).[23]
The AIJA Guide is not meant to be “a code”:[24] “Although the guide has considerable prestige, it has no legal standing. Moreover, it is indicative or suggestive, and not prescriptive.”[25] Nevertheless, the Guide is frequently referred to or cited in case law[26] and is available online for judges and the public to read. Canada and the UK have similar documents for their judges that contain suggestions for the judiciary regarding ethical issues.[27] The AIJA Guide appears to be the best document to outline principles for judges regarding social media use because it is well known nationally, judges read it and its contents are updated.
What are social media?
It is important to understand what social media are before considering some of the specific ethical issues that they may pose to judges. The Social Media chapter defines social media as “a term commonly used to refer collectively to technologies that facilitate social interaction”. It goes on to state:[28]
[S]ocial media encompasses social interaction via technological means. These technological means allow users to interact with vast amounts of information in unprecedented ways, and allows for personalization as a result of the ability to control the flow of information. Examples of popular social media include: Facebook, Twitter, YouTube, Instagram, LinkedIn and blogs. A person can use social media to share information, including comments, photographs and videos easily and it is normally free to do so. A person merely needs internet access on a computer or a digital media device to use social media. A large number of people can see what a social media user shares, and the information shared “may remain on the internet in perpetuity”. A social media user can also add comments, photographs, etc to an existing social media post. Social media users can modify the privacy settings that apply to their social media to control who can see their social media accounts and posts. Social media has some similarities with the average website, but an important difference is that social media permit the public to post information immediately, and the average website generally does not.
Some of the most popular social media are Facebook, Twitter, LinkedIn, Instagram and Snapchat. This article discusses each of these social media in turn.
Facebook is “arguably the most popular” social media;[29] however, that may change over time. It permits users to create a profile that contains information about themself. They may make written or visual posts,[30] including sharing videos, on their profile page. Everyone who signs up to Facebook receives a profile page.[31] A person with a Facebook profile can ask anyone else with a Facebook profile to be their “friend”, or they may receive a request from anyone else to be their “friend”. If the request is accepted, each can see what is posted on the other person’s profile and any future posts on the profile. A person’s “friend” is listed on their profile page, unless they choose to hide it.[32] On setting up a Facebook profile, the user must specify the privacy settings for the account, which dictate who may view the profile. The user can choose to have a public profile that enables anyone to view their profile, including all their posts. A business, organisation or celebrity may set up a Facebook page that enables anyone to “follow” the account without being a “friend” or the approval of the account holder (and the person being followed may not even realise that they are being followed). A Facebook page is frequently used for advertising or promotional purposes.[33] Over 1.39 billion people use Facebook monthly.[34]
Twitter is another form of social media. When someone creates a Twitter account, they receive a profile page on which they may “Tweet”. A “Tweet” is a short post that includes text and/or photos that a Twitter user can make and is displayed on their profile page. A person’s Tweets can be viewed by any other Twitter user, unless the account holder adjusts the settings on the account so that only certain people can see their Tweets. Twitter users can also “follow” other people’s Tweets.[35] This means that the other peoples’ Tweets will appear on their profile page and private messages can be exchanged between them.[36] Twitter has almost 650 million active users.[37]
LinkedIn is a form of social media that people use to exchange professional, as opposed to personal, information. People can use LinkedIn to post job opportunities and to network.[38] Users may create profiles that state their education, work history and professional goals. They can also post updates.[39]
Users can adjust the settings on their account so that it is accessible to anyone on LinkedIn or limited to certain people.[40] In 2017 there were 467 million LinkedIn users.[41]
Instagram is a form of social media that can be used to create a profile page and post photographs and videos. The account holder can also share those photographs and videos on other social media, such as Facebook.[42] Instagram has special filters that users can apply to their photographs and videos to change colour.[43] Instagram users can also follow other users. Profile pages are automatically public, unless the user adjusts them.[44] Over 300 million people use Instagram daily.[45] It is the fastest growing social media.[46]
Snapchat is a social media that people can use to share photos and short videos. The person who sends the photos or short videos can choose a specific amount of time after which the photos or short videos disappear.[47] In 2017 Snapchat had 173 million active users.[48]
There are additional social media besides the ones described. These include Pinterest, YouTube, Reddit, Vine, Flickr and Tumblr. A description of each is outside the purview of this article.
The existence of the social media chapter
Good things come to judges who wait. Considerable thought went into drafting the Social Media chapter. It was decided to modify the AIJA Guide at a Council of Chief Justices meeting in October 2016 and to include information regarding social media. The Honourable John Doyle AC supervised the changes to the Guide with the help of a handful of judges nationwide. The author of this article prepared a literature review regarding the existing work in this area that was drawn upon for the Guide modifications.[49] An entire chapter of the Guide discusses judges’ social media use, which signifies that it is an important topic that judges should be aware of.
One might argue that any guidelines regarding social media use for judges are unnecessary. However, social media poses situations that have never occurred before, in contrast to some other topics in the AIJA Guide that have existed for centuries (such as whether judges can participate in public debate and whether they can receive payment for writing a legal book). For example, social media permits millions of people to see that a judge is friends on Facebook with a lawyer who appears before them. They may assume that the judge is biased as a result, which can negatively impact upon confidence in the judiciary (discussed below). It is also arguable that specific guidelines regarding social media for judicial officers are not possible because new social media are created all the time. Admittedly, the popularity of a specific social media can increase or decrease very quickly.[50] Still, there are basic principles that apply to social media engagement generally that make providing guidance appropriate. One of these principles is that comments made on social media may be permanent, even though that may not be a judge’s intention. Another is that social media privacy settings can change. The Social Media chapter helpfully discusses both issues. Also, it is possible to update the Guide in the future should changes to social media occur that make it useful or necessary.
The Social Media chapter may help future judges who read the AIJA Guide. Lawyers who are interested in becoming judges may ensure they do not use social media in a way that could prevent them from becoming a judge or that could lower confidence in the judiciary should the public learn about it after they become a judge. For example, if they make a post that makes them appear strongly biased toward prosecutors or the defence.
Admittedly, the Social Media chapter is brief. It is under two and a half pages. It does not address many of the issues in this area, such as whether LinkedIn should be treated differently than other social media because it is meant to be used in a professional, as opposed to personal, capacity[51] and whether judges can state their occupation on their social media pages.[52] However, the other sections in the AIJA Guide are similarly brief. The Guide states that it “does not pretend to be exhaustive”.[53] No document can address all of the ethical issues associated with judges’ social media use.[54] Australian judges can easily access other Australian[55] and international[56] resources in this area. Presentations for judges regarding social media use are important[57] and have been provided in Australia.[58] The Social Media chapter addresses some of the most important issues in this area, as discussed below.
Should judges refrain from using social media?
It comes as no surprise that the Social Media chapter states that judges can use social media, but must exercise caution when doing so:
There is no reason in principle to deny judges the use of social media. But a judge should be aware of the risks that go with the use of social media, and should act with care in light of these risks.[59]
Many other jurisdictions give judges similar permission while encouraging them to exercise caution.[60] Some Australian judges have expressed a similar view.[61] Judges’ use of social media can help to maintain public confidence in the judiciary by demonstrating that they are in touch with their communities and can handle issues that arise in their courtroom that prima facie involve social media (eg whether defamation occurred on social media).[62]
However, while on the one hand, judicial officers’ use of social media may keep them connected to their community, on the other hand, if used inappropriately this may lower the public’s confidence in the judiciary.[63] This delicate balance supports the need for the Social Media chapter.
Should judicial officers “friend” lawyers who may come before them?
Perhaps one of the most contentious issues in this area is whether judges can have a social media connection (such as being a Facebook “friend” or a Twitter “follower”) with lawyers who regularly appear before them and what they should do if they learn that a person appearing before them is their social media connection. In Australia an incident similar to this occurred. Tasmania’s Deputy Chief Magistrate Michael Daly stated that he needed to consider whether he could preside over a case involving the State’s Director of Public Prosecutions for two reasons: because he was a Facebook friend of the accused’s wife; and because he had a long lunch with the accused.[64]
In Quebec, Canada, lawyers for the accused in a trial asked the judicial officer to recuse herself because many of her Facebook friends were Crown prosecutors. The judicial officer stated that she had a Facebook page, under a different name from her own, but she did not use it. She added that some of the lawyers for the accused were her Facebook friends. She would not recuse herself and stated that the accused’s lawyers could appeal her decision.[65] To date, the decision has not been appealed.[66]
Guidelines overseas are divided regarding whether a judicial officer should be able to have a social media connection with a lawyer who may appear before them. While most guidelines state that judicial officers cannot add lawyers who appear before them on social media,[67] some state that they may.[68] The Social Media chapter states:[69]
A judge must also be mindful of the persons with whom the judge has a connection through the use of social media. An established connection between the judge and an individual, or between the judge and a lawyer, might be problematic if the person or lawyer comes before the judge. It may be difficult for a judge to keep track of all of the persons with whom the judge has had contact or connection using electronic media, but the record of that contact will always exist, even though the judge has no memory of it.
Importantly, the Social Media chapter does not request that a judge monitor their social media contacts regularly to see if they have a connection to someone who might appear before them and states that doing so “may be difficult”. This is opposed to some of the American judicial opinions that require judges to consistently monitor their social media for such connections. For example, the Arizona Supreme Court Judicial Ethics Advisory Committee states that judicial employees “are expected to use reasonable means to know the persons with whom they are associated via electronic and social media and to monitor the cases they are working on to ensure that no conflicts arise”.[70] A Utah ethical opinion states that judges must monitor their own social media to make sure that they are “not associated with material that reflects poorly on the judiciary”.[71] A California opinion states:[72]
In a traditional social setting, a judge normally has no obligation to respond to comments made by others, no matter how distasteful or offensive. That is because those comments are normally not attributable to the judge. However such comments on a judge’s personal page can become not only permanent but accessible to all of the judge’s friends. Leaving them on the page may create the impression that the judge has adopted the comments. Therefore, a judge is obligated to delete, hide from public view or otherwise repudiate demeaning or offensive comments made by others that appear on the judge’s social networking site. Moreover, a judge has an obligation to be vigilant in checking his/her network page frequently in order to determine if someone has placed offensive posts there.
While the idea of a judge monitoring their social media connections regularly to see if they have a connection to someone who appears in the trial that they preside over may increase the public’s confidence in the judiciary, it would be an onerous task to undertake, particularly on a regular basis. Even then, a judge might not be able to find all of the connections (particularly because some may not use their real name on their social media).
The Federal Court of Australia’s Draft Guidelines for Judges about Electronic Social Media provide more guidance than the Social Media chapter on this topic. It states:[73]
Social media connections with the judge may raise perceptions of possible bias if those connections include members of the legal profession, particularly where they belong to a law firm that is well known for appearing in proceedings before the Court. This may also raise possible disclosure or disqualification issues. If a judge has a social media connection with a lawyer or party who is either appearing or will soon appear before him or her, the judge should consider whether the connection should be disclosed either prior to or at commencement of the matter.
Disclosure and recusal are well known ways to deal with challenging issues in a trial. The AIJA Guide recommends disclosure in other situations (such as whether a judicial officer has shareholding in a litigation company (s 3.3.1)). It may be that disclosure can be inferred as a possibility in the Social Media chapter if a judge has a social media connection to someone who appears before them, and hence that is why the Social Media chapter does not discuss it.
It is important to consider what a connection on social media actually means. The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline states:[74]
A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network “friend” may or may not be a friend in the traditional sense of the word.
Meaning, a connection on social media might not correspond to a real life connection. It would not make sense to have a strict rule that judges should automatically declare that they have a connection with someone who appears before them or should recuse themselves in such a situation. Establishing such a requirement could result in many disclosures and recusals and ultimately be a drain on court resources to the extent that it could negatively impact upon confidence in the judiciary. It could be useful to have a specific test for Australian judges to apply for recusal or disclosure in the particular situation of their having a social media connection to a participant in a trial.
Some lawyers may use knowledge that a judge is a social media connection with opposing counsel as a tactic to request that a judge recuse themselves from a case. The lawyer may hold a genuine belief that the judge is biased as a result of the connection. It could possibly be a way to try to get another judge to decide their case who they believe might be more agreeable to their arguments (though it is assumed that this would be rare due to lawyers’ generally high ethical standards). The public may be well aware that a social media connection might not translate into a real life connection. If they learn that a social media connection between a judge and a lawyer who appears before them exists, it may not have a negative impact upon their confidence in the judiciary. The AIJA Guide states in Ch 3:[75]
Personal friendship with a party is a compelling reason for disqualification, but friendships should be distinguished from acquaintanceship which may or may not be a sufficient reason for self-disqualification, depending upon the nature and extent of such acquaintanceship. The judge should consider whether to inform the parties of an acquaintanceship before the hearing begins.
Applying this reasoning to the Social Media chapter, if a judge has a social media connection to someone who appears before them, but they are acquaintances in real life, then the judge should consider the “nature and extent” of their acquaintanceship before disqualifying themselves.
If judges and lawyers are social media connections, then a judicial officer could see firsthand if a lawyer posts something inappropriate on social media and they could notify the legal practice board or a similar body regulating lawyers.[76] This occurred in Texas, US, when a lawyer asked for a continuance because her father died, which was granted. The presiding judge then looked at the lawyer’s Facebook page and saw photographs of the lawyer attending parties. The judge then denied the lawyer’s request for a second continuance and informed a partner at the lawyer’s firm about the lawyer’s actions.[77] It is assumed that a discovery similar to this by a judge would rarely occur due to lawyers’ generally high ethical standards. An incident that may be more likely to occur is that a judge’s family member uses social media.
Judge’s family member’s social media use
The Social Media chapter addresses the issue of a judge’s family using social media. It states:[78]
Family members of a judge and court staff should be alerted to the circumstance that their discussion of, or comment about, cases coming before the judge requires consideration. A judge might be quite unaware of a family member’s use of social media. But members of the public may assume that material emanating from a member of a judge’s family or from court staff is attributable to the judge, or reflects the judge’s views. Like a judge, members of the judge’s family should be alert to the possibility of a connection through social media with someone involved in a case before the judge. If this arises, the family member should inform the judge, so that the judge can consider whether any action needs to be taken, and if so, what action is appropriate.
The third edition of the AIJA Guide contains another new chapter, in addition to the Social Media chapter, entitled “Family and Relatives”. The “Family and Relatives” chapter is just over a page. The addition of this chapter appears to indicate a new importance upon providing guidance to a judge’s family or else a new recognition that the judiciary needs written guidance in this area, which may explain why the Social Media chapter discusses a judge’s family.
The Social Media chapter is the only guideline in this area (out of the jurisdictions previously mentioned) that the author could find that addresses this issue. Should judges take its advice and inform their family members that they should be careful about what they post on social media in relation to cases before the judge, then the judge’s family members may avoid using social media inappropriately, which would avoid negatively impacting upon the public’s confidence in the judiciary.
The Social Media chapter does not mention which specific family members a judge should contact to inform them about restrictions regarding their social media use due to the judge’s position (eg spouse, children, siblings). A judge’s specific situation and the reality of what a family today consists of likely informs which family members a judge should contact, although the public may assume that a spouse and blood relatives represent a judge’s opinion more than other relatives. Importantly, as the section rightly states, a judge may not know whether their family members use social media. They may not want to choose which family members to contact about this issue based on whether or not they know that the family member uses social media.
The author undertook a detailed search to find examples of the family members of Australian judges who use social media inappropriately. She could not find any, though she could find such examples for the US and the UK.[79] Importantly, even though she could not find such information, it does not mean that the family members of Australian judges are not using social media inappropriately, even in large numbers. The media and similar institutions may simply not know that the judge’s family member used social media inappropriately because no one has brought it to their attention. The family members may use anonymous names on social media to make it harder (though not impossible) to find their social media pages.
Conclusion
A measured, considered approach was taken regarding providing guidelines to Australian judges about social media. It would be fair to assume that such an approach would be taken should ethical guidance for judges be necessary regarding other new technology, such as artificial intelligence. The Family Court of Australia has used artificial intelligence, Split-Up, which can predict how a couple’s assets should be distributed.[80] In the US, some judges use artificial intelligence called COMPAS to help predict whether an offender might reoffend.[81]
This article discussed the AIJA Guide, gave a brief a definition of social media, discussed the Social Media chapter generally, and then considered whether judges should be permitted to use social media and whether they can become social media connections with lawyers who appear before them. It also examined issues regarding judges’ family members using social media inappropriately. It appears that the Social Media chapter can help to maintain confidence in the judiciary. However, time will tell whether this is correct.
TABLE 1. Guidelines for Judges about Social Media Use in Australia, England and Wales and the United States
| Country | State (if applicable) | Year | Title of Guidelines |
| Australia | Federal Court of Australia | 2013 | Draft Guidelines for Judges about Electronic Social Media |
| Australia | 2017 (updated 2020) | Australian Guide to Judicial Conduct (3rd ed) | |
| England and Wales | 2012 | Blogging by Judicial Office Holders | |
| England and Wales | 2013 (revised 2018) | Guide to Judicial Conduct (pp 26–27) | |
| US | 2016 | Advisory Committee on the Code of Judicial Conduct, Advisory Opinion Concerning Social Media | |
| US | 2013 | American Bar Association, Formal Opinion 462 Judges' Use of Electronic Social Networking Media | |
| US | 2014 | United States Courts, Advisory Opinion | |
| US | Arizona | 2014 | 14-01 Opinion Arizona Supreme Court Judicial Ethics Advisory Committee |
| US | California | 2011 | 66 Opinion California Judges Association |
| US | Connecticut | 2013 | 06 Informal Opinion, Connecticut Committee on Judicial Ethics |
| US | Florida | 2010 | 06 Opinion Florida Supreme Court Judicial Ethics Advisory Committee |
| US | Florida | 2012 | 12 Opinion Florida Supreme Court Judicial Ethics Advisory Committee |
| US | Florida | 2012 | 07 Opinion Florida Supreme Court Judicial Ethics Advisory Committee |
| US | Idaho | Idaho Code of Judicial Conduct, r 3.1[5] | |
| US | Kentucky | 2010 | JE-119 Ethics Committee of the Kentucky Judiciary |
| US | Maryland | 2012 | Opinion 2012-07 Maryland Judicial Ethics Advisory Opinion |
| US | Massachusetts | 2011 | Opinion 2011-6 Massachusetts Committee on Judicial Ethics |
| US | New York | 2009 | Opinion 08-176 New York Advisory Committee on Judicial Ethics |
| US | New York | 2013 | Opinion 13-39 New York Advisory Committee on Judicial Ethics |
| US | Ohio | 2010 | 07 Opinion The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline |
| US | Oklahoma | 2011 | 03 Opinion Oklahoma Judicial Ethics Advisory Panel |
| US | South Carolina | 2009 | South Carolina Judicial Advisory Committee on Standards of Judicial Conduct |
| US | Tennessee | 2012 | 01 Opinion Tennessee Judicial Ethics Committee |
| US | Utah | 2012 | 01 Informal Opinion Utah Ethics Advisory Committee |
| US | Washington | 2009 | Opinion 09-05 Washington State Ethics Advisory Committee |
| US | West Virginia | West Virginia Code of Judicial Conduct |
- Note:
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Some of the information in this table is from the National Center State Courts, Social media and the courts, 2017.
[1] This article was first published by Thomson Reuters in the Journal for Judicial Administration and should be cited as M Bromberg, “Right here waiting for you: the new social media chapter in the Australian Guide to Judicial Conduct” (2018) 27 JJA 123. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.
[2] Senior Lecturer, The University of Western Australia Law School, Solicitor. The author thanks Dr Felicity Maher and Ms Justine Howard for their comments on this article. This article is dedicated to Mr Kennedy Krawitz.
[3] The word “judge” in this article also includes magistrates.
[4] K Eltis, “Does avoiding judicial isolation outweigh the risks related to ‘professional death by Facebook’?” (2014) 3 Laws 636 at 643.
[5] For a discussion regarding public confidence in the judiciary, see M Gleeson, “Public confidence in the judiciary” (2002) 76(9) ALJ 558; S Kenny, “Maintaining public confidence in the judiciary: a precarious equilibrium” [1999] Federal Judicial Scholarship 1; W Phillips, “Complaints against judges and public confidence in the judiciary: does South Australia need a complaints handling body?” (2014) 33(4) Civil Justice Quarterly 427.
[6] E Janoski-Haehlen, “‘The courts are all a-twitter’: the implications of social media use in the courts” (2011) 46(1) Valparaiso University Law Review 43 at 52.
[7] “Twittering judge quits bench”, The Express (online), 26 April 2017 at www.express.co.uk/news/weird/97115/ Twittering-judge-quits-bench, accessed 8 June 2021.
[9] D Blitsa, et al, “Judges and social media: managing the risks”, Themis Competition, 2015, at www.ejtn.eu/Documents/THEMIS%202015/Written_Paper_Greece3.pdf, accessed 8 June 2021.
[10] Canadian Centre for Court Technology, “The use of social media by Canadian judicial officers”, 2015, at www.cacp.ca/ law-amendments-committee-activities.html?asst_id=844, accessed 8 June 2021.
[11] See, eg In the Matter of Whitmarsh, New York State Commission on Judicial Conduct, 28 December 2016 at www.cjc.ny.gov/Determinations/W/Whitmarsh.Lisa.J.2016.12.28.DET.pdf, accessed 8 June 2021; In Re Bass, No 2012-31 (Ga Mar 18, 2013), Public Reprimand, Georgia Judicial Qualifications Commission, 18 March 2013; In re Stevens (Agreed Order of Suspension, Kentucky Judicial Conduct Commission, 8 August 2016, https://kycourts.gov/Courts/JCC%20Actions%20Documents/2016AgreedOrderStevens.pdf, accessed 8 June 2021; O Cowcott, “Judge sacked over abusive online posts”, The Guardian (online), 13 April 2017 www.theguardian.com/law/2017/apr/12/judge-sacked-over-online-posts-calling-his-critics-donkeys, accessed 8 June 2021; Canadian Centre for Court Technology, n 10, at 26–27. Also see Table 1 of this article for a list of the ethical opinions that were drafted as a result of judges’ inquiries.
[12] See, eg Federal Court of Australia, Technology and the Court Practice Note, 2016 at www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/gpn-tech, accessed 8 June 2021; American Bar Association, Formal opinion 462 Judge’s use of electronic social networking media at www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf, accessed 8 June 2021; Canadian Centre for Court Technology, n 10.
[13] D Smith, “When everyone is the judge’s pal: Facebook friendship and the appearance of impropriety standard” (2011) 3(1) Journal of Law, Technology and the Internet 1 at 24. See, eg Kentucky Supreme Court Rules, r 4.310(3).
[14] N Mitchell, “Judge 2.0: a new approach to judicial ethics in the age of social media” (2012) 4 Utah Law Review 2127 at 2130.
[16] Senior Presiding Judge for England and Wales and Senior President of Tribunals, Blogging by judicial office holders, August 2012, at www.familylaw.co.uk/docs/pdf-files/Blogging_by_Judicial_Office_Holders.pdf, accessed 8 June 2021.
[17] Judiciary of England and Wales, Guide to Judicial Conduct, revised 2018, at www.judiciary.uk/publications/guide-to-judicial-conduct/, accessed 8 June 2021.
[19] See, eg M Krawitz, “An Examination of Social Media’s Impact Upon the Courts in Australia” PhD (Law) Thesis, Murdoch University, 2014 at pp 60–64, at https://researchrepository.murdoch.edu.au/id/eprint/23839/, accessed 8 June 2021. It is noted that there were guidelines for judicial officers regarding social media from the Federal Court of Australia since 2013: Federal Court of Australia, n 12. The author is unaware of how often judges nationwide used those guidelines.
[20] Australasian Institute of Judicial Administration Inc, Guide to Judicial Conduct, 3rd ed (rev), 2022, (“AIJA Guide”).
[22] ibid.
[23] ibid at vii.
[24] M Gleeson, “State of the Judicature”, Speech delivered at the 13th Commonwealth Law Conference, Melbourne, 17 April 2003 at www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_stateof.htm, accessed 8 June 2021.
[26] See, eg Lawrie v Lawler [2015] NTSC 40 at [83]–[84]; Re Apch Ltd (No 4) [2017] VSC 451 at [17] (Robson J); Confidential v Cmr of Taxation (2013) 93 ATR 491 at [595]–[596] (Deputy President Forgie).
[27] See Judiciary of England and Wales, n 17; Canadian Judicial Council, Ethical Principles for Judges, 2004, at https://cjc-ccm.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf, accessed 8 June 2021.
[28] AIJA Guide, n 20, at 43. Part of this quote is from M Bromberg-Krawitz, “Issues paper for a symposium: challenges of social media for courts & tribunals”, May 2016, pp 2–3, at https://aija.org.au/wp-content/uploads/2017/07/Krawitz.pdf, accessed 8 June 2021. For additional definitions of social media, see M Lackey and J Minta, “Lawyers and social media: the legal ethics of tweeting, facebooking and blogging” (2012) 28 Touro Law Review 149 at 151; N Boothe-Parry, “Friends of justice: does social media impact the public perception of the justice system?” (2014) 35 Pace Law Review 72 at 73; New York Advisory Committee on Judicial Ethics, 08-176 Opinion, 2009; California Judges Association, 66 Opinion, 2011, at www.caljudges.org/docs/Ethics Opinions/Op 66 Final.pdf, accessed 10 June 2021; J Gibson, “Judges, cyberspace and social media” (2015) 12(2) TJR 237 at 240–241.
[29] S Jones, “Judges, friends and Facebook: the ethics of prohibition” (2011) 24 The Georgetown Journal of Legal Ethics 281 at 283.
[30] Dabrowski v Greeuw [2014] WADC 175 at [2]–[3] (Bowen DCJ).
[31] J Ramos, “Facebook page vs Facebook Profile: do you know the difference?”, 15 June 2014, at www.business2community.com/facebook/facebook-page-vs-facebook-profile-know-difference-0908808, accessed 9 June 2021.
[32] J Crager et al, “Facebook all-in-one for dummies cheat sheet”, at www.dummies.com/social-media/facebook/facebook-all-in-one-for-dummies-cheat-sheet/, accessed 9 June 2021.
[33] ibid.
[34] S Singh, “Friend request denied: judicial ethics and social media” (2016) 7 Journal of Law, Technology and the Internet 153 at 155.
[35] ACCC v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34 at [17] (Finkelstein J).
[36] Twitter, “Following FAQs”, 2018, at https://help.twitter.com/en/using-twitter/following-faqs, accessed 9 June 2021.
[37] M Felsky, Facebook and social networking security, Canadian Judicial Council, 2017, at https://cjc-ccm.ca/sites/default/files/documents/2019/Facebook%20security%202014-01-17%20E%20v1.pdf, accessed 9 June 2021.
[39] B Hull, “Why can’t we be ‘Friends’? A call for a less stringent policy for judges using online social networking” (2012) 63 Hastings Law Journal 595 at 602.
[41] “LinkedIn by the numbers: 2017 statistics”, LinkedIn, 5 April 2017, at www.readycontacts.com/linkedin-by-the-numbers/, accessed 9 June 2021. Note: in 2021, LinkedIn has 756 million registered members, see www.businessofapps.com/data/linkedin-statistics/, accessed 9 June 2021.
[42] P Sheldon and K Bryant, “Instagram: motives for its use and relationship to narcissism and contextual age” (2016) 58 Computers in Human Behavior 89 at 89.
[43] ibid.
[44] “What is following and what does it mean on social media”, Big Commerce, www.bigcommerce.com.au/ecommerce-answers/what-is-following/, accessed 9 June 2021.
[45] T Dumas et al, “Lying or longing for likes? Narcissism, peer belonging, loneliness and normative deceptive like-seeking on instagram in emerging adulthood” (2017) 71 Computers in Human Behavior 89.
[46] G Blank and C Lutz, “Representativeness of social media in Great Britain and investigating Facebook, LinkedIn, Twitter, Pinterest, Google and Instagram” (2017) 61(7) American Behavioral Scientist 741.
[47] J Vaterlaus, “‘Snapchat is more personal’: an exploratory study on Snapchat behaviors and young adult interpersonal relationships” (2016) 62 Computers in Human Behavior 594 at 595.
[48] S Aslam, “Snapchat by the numbers: stats, demographics & fun facts”, Omnicore, 1 January 2018, at www.omnicoreagency.com/snapchat-statistics/, accessed 9 June 2021.
[49] AIJA Guide, n 20, at p vii.
[50] Tennessee Judicial Ethics Committee, Opinion 12-01, 23 October 2012, at www.tncourts.gov/sites/default/files/docs/advisory_opinion_12-01.pdf, accessed 9 June 2021.
[51] See, eg Arizona Supreme Court Judicial Ethics Advisory Committee, Opinion 14-01, 2014, at www.azcourts.gov/azcjc/JudicialEthicsAdvisoryOpinions/2014.aspx, accessed 9 June 2021; Utah Ethics Advisory Committee, Opinion No 12-01, 2012; Florida Supreme Court Judicial Ethics Advisory Committee, Opinion Number: 2012-12, 2012, at www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2012/2012-12.html, accessed 9 June 2021; Florida Supreme Court Judicial Ethics Advisory Committee, Opinion Number: 2009-20, 2009, at www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/2009-20.html, accessed 9 June 2021.
[52] See, eg Senior Presiding Judge for England and Wales and Senior President of Tribunals, Blogging by Judicial Office-Holders, UK Government, August 2012, www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/blogging-guidance-august-2012.pdf, accessed 9 June 2021.
[53] AIJA Guide, n 20, at p 3.
[55] For example, the topic of a judge’s family using social media is covered in the Social Media chapter and also in Bromberg- Krawitz, n 28, at pp 14–16.
[56] See Table 1.
[57] M Bromberg, “The Judiciary’s Guides to the Social Media Galaxy” (2017) 1(1) The Court Administrator 10.
[58] See, eg Australasian Institute of Judicial Administration Inc and the Judicial Conference of Australia, A symposium: challenges of social media for courts & tribunals, 26–27 May 2016 at https://aija.org.au/wp-content/uploads/2017/07/SM2016-Program.pdf, accessed 9 June 2021.
[59] AIJA Guide, n 20, at p 43.
[60] See, eg Arizona Supreme Court Judicial Ethics Advisory Committee, n 51; Tennessee Judicial Ethics Committee, n 50.
[61] See, eg the references listed in Bromberg-Krawitz, n 28, at 9: W Martin, “Freedom of the Press and the Courts”, speech delivered at the Judicial Conference of Australia Colloquium 2015, Adelaide, 9 October 2015 at p 23 at www.supremecourt.wa.gov.au/_files/Freedom_of_the_Press_Martin_Oct2015.pdf, accessed 10 June 2021; V Bell, “The Role of a Judicial Officer — Sentencing, Victims and the Media”, speech delivered at the Magistrates’ Court of Victoria Professional Development Conference, 22 July 2015, at p 16 at www.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bell22jul2015.pdf, accessed 10 June 2021.
[63] N Mitchell, “Judge 2.0: A New Approach to Judicial Ethics in the Age of Social Media” (2012) 4 Utah Law Review 2127 at 2158.
[64] AAP, “Facebook friend could rule second Senior Magistrate out of Tim Ellis case”, The Australian (online), 13 December 2013.
[66] L Millán, “Request for recusal highlights need for judicial guidelines over social media”, Law in Quebec, 5 January 2015, at https:// lawinquebec.com/request-for-recusal-highlights-need-for-judicial-guidelines-over-social-media/, accessed 10 June 2021.
[67] See, eg Florida Supreme Court Judicial Ethics Advisory Committee, Opinion Number: 2009-20, n 51.
[68] See, eg Florida Supreme Court Judicial Ethics Advisory Committee, Opinion Number: 2010-6, 2010 at www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2010/2010-06.html, accessed 10 June 2021.
[69] AIJA Guide, n 20, p 44.
[72] California Judges Association, 2011, at www.caljudges.org/docs/Ethics Opinions/Op 66 Final.pdf, accessed 10 June 2021.
[74] The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Opinion 2010-7, 2010, at www.ohioadvop.org/wp-content/uploads/2017/04/Op_10-007.pdf, accessed 10 June 2021.
[75] AIJA Guide, n 20, pp 15–16.
[78] AIJA Guide, n 20, pp 44–45.
[79] See J Browning, “Why can’t we be friends? Judges’ use of social media” (2014) 68 University of Miami Law Review 487, at 508–509; C Greenwood, “Judge in row over online antics of his gay lover who left crude comments on his Facebook page including lewd quip about Chuka Umunna”, The Daily Mail (online), 1 March 2016 at www.pressreader.com/uk/daily-mail/20160229/281981786668779, accessed 10 June 2021, referenced in Bromberg-Krawitz, n 28, at 15.
[80] K Walsh, “Robots are coming to courts — but they won’t replace judges: BGC”, Financial Review (online), 30 March 2017 at www.afr.com/business/legal/robots-are-coming-to-courts--but-they-wont-replace-judges-bcg-20170328-gv7zic, accessed 10 June 2021.
[81] L Kamener, “Closing keynote for innovation and excellence in courts conference”, speech delivered at the Monash University Law Chambers Auditorium, Melbourne, 28 March 2017.