On Oct. 8, 2024, the Canadian Judicial Council published a bilingual 20-page guidebook, titled Guidelines on the Use of Social Media by Federally Appointed Judges, which consolidates, elaborates and nuances the ad hoc guidance the disciplinary body for federally appointed judges has provided on the subject in the two decades since Facebook mainstreamed social media.
The purpose of the “advisory” guidelines (i.e. not a binding code of conduct) is to provide non-exhaustive but additional useful guidance about the “safe and appropriate use of social media by judges,” in light of considerations already highlighted in the council’s 2021 Ethical Principle Principles for Judges, says the council of 44 chief and associate-chief justices of the superior trial and appellate courts.
The new guidelines broadly define “social media” as “websites and applications which enable users to [access], create and share content or to participate in social networking.”
The council says its definition encompasses “a wide variety of tools, which are used for a range of purposes, such as staying in touch with family and friends, reading news, publicizing one’s opinions and connecting with communities that share one’s interests.”
Via these social media tools, “depending on the platform, users can choose to simply passively view content posted by others, or can be more active by, for example, sending direct messages or posting their own text, pictures and videos.”
The document sets out some common sense and time-honoured rules that are widely accepted by judges; for example: Don’t use social media to research facts related to a case you’re hearing.
However, the guidelines also address less obvious and potentially arguable matters, such as how judges may identify themselves on social media accounts, create and interact with social media content and connect with others.
Judges are advised, for example, to “take reasonable efforts” to monitor their social media accounts in order to preserve respect and confidence in the judicial role and the justice system.
So if a judge finds that one of their social media connections has “posted content that could reflect negatively on the integrity of the judge or their court, the impartiality of the judge, the judge’s commitment to equality, or the administration of justice, the judge should consider removing or blocking that connection, if technically possible,” the guidelines state.
As well, a judge should monitor the “social media activities” of their personal connections, the guidelines suggest. “A judge should be attentive to and may wish to inform family members and friends of the ways in which their social media activities could reflect adversely on the judge, the judiciary as a whole, or the administration of justice generally.”
The judicial council also propounds what can be interpreted as broad constraints on judges’ freedom of speech in their personal and private use of direct messaging on “social media” (as defined by the guidelines). Judges are advised that they should not engage in discussions or express their personal opinion on social media, through public postings “or private messaging, about disputes or matters that are, or may come before them, their court or other courts in Canada.”
The guidelines say that judges’ use of pseudonyms or other means to shield their identity on platforms that permit anonymity “is neither recommended nor prohibited.”
However, judges should be aware that such measures would not prevent third parties from identifying them and that taking steps to shield one’s identity “does not justify or excuse otherwise improper social media behaviour. In some cases, identity-shielding measures can give rise to other ethical concerns.” For example, using a partisan or controversial image as a profile picture “could generate impartiality and integrity concerns,” the guidelines warn.
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