10. Social media Flashcards
When may the BSB take action against a barrister for social media posting?
- We may consider taking regulatory action against you where your conduct on social
media is such that it is potentially in breach of the BSB Handbook. The BSB is more
likely to have a regulatory interest in social media use where the manner in which you
express yourself is inconsistent with your obligations under the BSB Handbook. We are
less likely to have an interest in the substance of the views that you hold (however
unpopular they may be). However, there may be cases where the views or opinions that
you express may mean that regulatory action is justifiable, for example, where you post
material online which is dishonest or discriminatory. - For example, conduct which is discriminatory may demonstrate a barrister’s attitude
towards people from certain groups (particularly minoritised and/or vulnerable groups)
and might indicate how the barrister will interact with those people in the future,
including how they may provide legal services to them. Such conduct may also alienate
clients, future clients, and members of the public who identify as part of those groups
and make them feel uncertain about engaging the barrister and/or the profession or
trusting that the barrister and/or the profession will act in their best interests. This could
be seen as a risk to access to justice, and it is therefore likely to be in the public interest
to regulate such conduct.
If you use social media outside your professional life, your conduct could still
bring into question your compliance with certain Core Duties and Conduct Rules in the
BSB Handbook which apply to you at all times and so you should always be mindful of
what you post or share online. Of the rules that apply to you at all times, the ones that
are most likely to be relevant to your use of social media include:
- Core Duty 5: You must not behave in a way which is likely to diminish the trust and
confidence which the public places in you or in the profession. - Rule C8: You must not do anything which could reasonably be seen by the public
to undermine your honesty, integrity (CD3) and independence (CD4).
- Remember that CD5 and rC8 apply to you at all times, even if you are an
unregistered barrister. H
What type of social media posting may constitute breaches of the handbook?
- In general terms, ANY conduct on social media which might be said to be inconsistent
with the standards expected of barristers may amount to a breach of the BSB
Handbook.
The following is a non-exhaustive list of examples of the types of conduct on social
media that may amount to a breach of the BSB Handbook, depending on the particular
circumstances and the risk posed to the regulatory objectives:
- Posting material online that is dishonest, as this may be a breach of CD3, CD5
and/or rC8. - Making comments that target a person or groups of people which are seriously
offensive, discriminatory, harassing, threatening, or bullying. Comments of this
nature may be a breach of CD5 and/or rC8. This includes making comments which
are of an indecent, obscene, or menacing character or which are gratuitously
abusive. However, the use of foul language alone is unlikely to amount to a breach
of the BSB Handbook. - Sharing communications or hyperlinks to content posted by others which are
seriously offensive, discriminatory, harassing, threatening or bullying, without
making it clear that you disagree with the content, as this may be taken as an
endorsement of that content. Such conduct may be a breach of CD5 and/or rC8. - Comments about judges, the judiciary, or the justice system which involve
gratuitous attacks or serious criticisms that are misleading and do not have a sound
factual basis.6 Comments of this nature may be a breach of CD1, CD3, CD5, rC8
and/or rC9. - You should also be alive to the potential risks to your ability to keep the affairs of
your client confidential (CD6) when you are using social media
What will the BSB consider when assessing whetehr conduct on social media may be in breach of the handbook?
. In considering a potential breach of the BSB Handbook relating to your conduct on
social media, we will take into account:
a. How a hypothetical, ordinary reasonable person would be likely to respond to
your conduct, having regard to the wider context in which it occurred. This will
involve an objective assessment based on the “natural and ordinary meaning”
of what you post. The social media platform which you use may also be
relevant. The views and/or reaction of any individual who reported the
conduct to us, while potentially relevant, is unlikely to be determinative.
b. The substance of what you post (including the type of speech engaged, such
as whether it is “mere gossip”8 or contributes to a debate in the public
interest
). We recognise that political speech is afforded the highest level of
protection under Article 10 and is something in which we are unlikely to have
a regulatory interest. However, we are likely to have a regulatory interest in
conduct which is not afforded the protections guaranteed by Article 10, by
virtue of Article 17 ECHR (ie conduct which is aimed at the destruction of the
rights and freedoms of others). Case law from the European Court of Human
Rights has found that this includes extreme or grave forms of hate speech, a
threat of or incitement to violence, xenophobia, racial discrimination,
Antisemitism,10 Islamophobia11 and Holocaust denial.
c. The manner in which you express your views (including the language used),
the mode of publication, and the broader context. While the right to hold a
view and say something may be protected by Article 10, if there is something
objectionable about the manner in which it is expressed, this could be a
potential breach of the BSB Handbook and therefore we may have a
regulatory interest in your conduct.
d. The impact of your conduct. This may include the impact on individuals or
organisations, and/or on public trust and confidence in you or the profession.
The purpose behind your conduct may not always be relevant
