Let the judges blog

15 August 2012 by

The legal blogosphere has been aflame this week with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance to judges banning them from blogging in their judicial capacity. The SPJ has also threatened disciplinary action unless they remove existing content with breaches the new rules.

The key section of the purported guidance is this:

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.

What to make of this? The first thing to say is that some of the best legal bloggers out there are judicial office holders, including The Magistrate’s Blog, whose anonymous writer has said he is thinking very carefully about what to do, and potentially the wonderful Nearly Legal housing law blog. NL of that blog (who admits to not being a judge), argues that the ban is “short-sighted” and a likely to have a “damaging effect on public understanding of the legal system and transparency“.

A detailed and thoughtful post on the issue has been published by family law blogger, barrister (but not judge) Lucy Reed, who argues:

Any judge or magistrate who opened her mouth before engaging her brain on twitter, on a blog on the radio or in a newspaper or elsewhere ought rightly to be the subject of complaint and due process. It does not require a heavy handed guidance document about web logging for that to happen.

My tuppence

As you might predict, I am with Lucy (and the rest of the legal blogopshere) on this issue. The guidance seems to be a knee-jerk reaction to a problem which does not exist. As Obiter J points out, “I fail to see why the maintenance by any Judge or Magistrate of a responsible blog should adversely affect public confidence in the judiciary.” I probably follow the legal blogosophere as much as anyone, and do not remember ever reading a single inappropriate blog post by a judge.

According to American blogger John Aravosis posts, it’s not all bad:

They didn’t ban judges from blogging all together, so that’s a good sign… Their concerns about anonymous blogging – that it’s not a guarantee that your secret identity won’t be found out – is justified.

But even if things are not all bad, as Lucy Reed suggests, there is still significant work to be done. As the guidance currently stands, it is likely to have a significant chilling effect on current and future judicial blogging. More worryingly, this somewhat heavy-handed response is likely to have precisely the opposite effect than is intended; namely, reducing public confidence in the judiciary by putting paid to the embryonic judicial blogging scene which has – most notably the Magistrate’s Blog – opened otherwise closed doors to court rooms and the everyday concerns and curiosities of life as a judge.

The effect of these new rules is potentially very widespread. Lots of barristers sit as part-time judges, whether in the County Court, as Deputy High Court Judges or Recorders. This guidance effectively bans them from blogging, as anyone would be able to find out that they are judges simply by checking their chambers profile.

A more enlightened view

The main problem here is the starting point. It appears that someone has identified a problem, being the potential (although until now, only theoretical) that judicial blogging may undermine public confidence in the judiciary. Indeed, this seems to reflect the rather unfortunate proposed new guidance on Continuing Professional Development from the Bar Standards Board.

But why not start from a different position, that judicial blogging could be a force for good, a way to bring the public closer to the law? This seems to be the position in the United States, where the President of the National Judicial College has said this:

As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice

Obiter J has posted more on the US view, which should be emulated here. Surely any errant judicial blogger (of which I repeat, there are currently none) can be brought into line using the already-existing disciplinary procedures available. The new guidance is akin to banning driving so as to prevent speeding. Or to coin a phrase which will be familiar to readers of this blog, a disproportionate means of achieving a legitimate end.

Like Nearly Legal, I will finish by reminding readers of the words of Lord Neuberger, the new President of the UK Supreme Court, that the Judiciary should

foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.

In my view, our own judicial guidance needs a bit more thought. Social media can be an opportunity rather than a threat for our legal system.

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  1. sid30837 says:

    Reblogged this on sid30837.

  2. Simon Carne says:

    Not only does the guidance seem to be ill-advised, it also seems to be ambiguous and illogical – a far worse sin in (some) legal circles.

    I refer to the wording which says “must not identify themselves as members of the judiciary”. I had taken that to mean “must not identify themselves WITHIN THE BLOG as members of the judiciary”. But both you and Lucy Reed (http://pinktape.co.uk/courts/judgment-without-opinion/) are taking the view that it has the wider meaning that a blogger must not be capable of identification as a judge from, for example, their LinkedIn page or, in the case of a deputy judge, the website of the chambers or firm where they have their regular work.

    If you are right about that wider interpretation, it’s not just the chambers/firm website that is the problem – it’s the court website. And not just the website, either. All judges names are a matter of public record, so any judge who blogs can potentially be identified as a judge. (Anonymity is, as you note, expressly ruled out as a protection by the guidance, because the anonymity may fail.) Logically, on your interpretation, all blogging by judges must be banned.

    Given that the guidance expressly says that is not the case, I start to wonder whether my original interpretation may have ben correct. But that would plainly be daft, too. After all, if (hypothetically) we read a blog by someone called Jonathan Sumption, who didn’t tell us within the blog what his job was but seemed to have worked in the law, we’d still have a jolly good idea.

    I think it would be safe to assume that this guidance is going to be withdrawn pretty darn soon … After all, August is known for being the silly season.

  3. Enough comments have been made here and elsewhere on the content of this so called guidance but nobody seems to have considered why a very learned senior judicial figure should publish such controversial material. If he were aware that there would likely be stern opposition within the legal profession did he decide that the risk of adverse publicity for him personally was worth it? If he did not foresee such determined comment it says little for his command of his position. I would suggest that perhaps knowing of the increasing disquiet surrounding the operation of the lower courts owing to ever increasing financial belt tightening he was nudged into his current action which appears to be directed specifically against magistrate bloggers under the umbrella term of judicial office holders.

  4. Bystander says:

    Thank you for your support. The blog will continue come what may, even if I have to do some Jesuitical tinkering to remove my judicial fingerprints from it. I am taking advice from wise and respected people, and after seven and a half years’ blogging I am in no tearing hurry, as I would prefer to get it right.

  5. ObiterJ says:

    Thank you for adding your view to this matter and for the links to my blog.

    Whilst Article 10 European Convention permits some interference with freedom of expression in order to protect the judicial function, any such restriction has to be set prescribed by law and clear enough so that the affected person can know whether his proposed actions comply with the law. The SPJ’s “guidance” seems to me to fail under these requirements.

  6. Corrupted Mind says:

    Sheer lunacy. As a judge you can give any number of talks, lectures and speeches on almost any topic but for some unbeknownst reason blogging is off limits. It doesn’t make any sense. The funny thing is a judge who gives a lecture at middle temple, say on press freedom is within the rules, but to republish that lecture on ukhumanrights blog would be against the rules… and woe betide the judge that comments to correct or clarify his views. My only hope is that someone somewhere spots the total folly of this guidance and removes it.

    1. ObiterJ says:

      One suspects that the “guidance” is really aimed at the lower echelons of the system. Even the Senior Presider cannot really tell the Lords Justice of Appeal or the Justices of the Supreme Court what to do. They will do their own thing regardless.

  7. Felix Labinjo says:

    This is my interpretation, as a layperson, of the guidance issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals:

    “ You must now go over all the blogs that you have written and check whether

    (a) you can potentially be identified as a judicial office holder. It matters not whether some of your blogs had been written anonymously.
    (b) any opinion expressed in your blogs undermines or potentially undermines public confidence in the impartiality of the judiciary. You are all familiar with the reasonable persons test.

    Failure to comply with this requirement could result in disciplinary action, and in serious cases, lead to loss of office…”

    Thank God I am not a judicial office holder! I would certainly have considered taking my bat home at this rather over-the-top guidance or said “ I ain’t playing no more!”

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