The Bar Standards Board have (finally) issued some new guidance on Core Duty 5 and its application to social media. That's the bit of the Code of Conduct that tells us barristers not to behave like pillocks, in case you are unfamiliar with it.
For those of you wondering about the title, it's a dull topic, so - say it in your best fake American accent and watch this clip from Wreck it Ralph. In fact, if at any stage you find yourself lapsing into a coma during the reading of this post, play it again...
It wasn't very long ago that I observed that there was a notable absence of specific guidance about conduct on social media. In fact, looking back, my post on the topic : Debretts* guide to social media for lawyers was published as recently as 5 February, and the new guidance has a "valid from" date of 17 February, so it was presumably published shortly after my original post. There doesn't seem to have been any announcement of its publication, although it is just possible* that there has been some BSB update email that I have accidentally left in my spam folder and not read**.
You can read the guidance here : BSB guidance for barristers using social media.
What does it say?
The headline is : Core Duty 5 (duty not to behave in a way likely to diminish public trust and confidence in the profession) applies AT ALL TIMES, including on social media - in both your personal and private capacities "since the inherently public nature of the internet means that anything you publish online may be read by anyone and could be linked back to your status as a barrister". This much should be clear from a sensible reading of the Code of Conduct itself but it bears re-stating.
What else :
- Comments designed to demean or insult are likely to diminish public trust and confidence in the profession
- It is also advisable to avoid getting drawn into heated debates or arguments. Such behaviour could compromise the requirements for barristers to act with honesty and integrity (CD3) and not to unlawfully discriminate against any person (CD8)
- You should always take care to consider the content and tone of what you are posting or sharing. Comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others.
There is also some fairly obvious guidance about client confidentiality and geotagging, and a reminder that :
When you are using social media, you should bear this guidance in mind at all times. This guidance will be considered by the BSB in any action it takes over concerns about social media use. If you are the subject of a complaint concerning your use of social media, we will investigate the matter carefully and in line with the process explained on our website.
And that's it folks.
I have to say that I think the guidance is somewhat over-anxious. I am very alive to the need for members of the bar to conduct themselves appropriately online (as well as offline), but I wonder if it is striking quite the right balance to suggest that we should avoid getting drawn into heated debates or arguments. One might rhetorically ask what is the point of twitter without heated debates and arguments? The point is not the fact of the argument, it is the manner in which it is conducted. It cannot be right that barristers should be prohibited from expressing strongly held opinions in strongly worded terms. But there is of course a limit to what is acceptable, either for a barrister or for joe public. It is quite possible to be appropriately involved in a heated argument on twitter without offending CD3 (honesty and integrity) and without discriminating (CD8). I would prefer this guidance to say simply that in any communication online a barrister should act with honesty and integrity and should not act in a way which is discriminatory. Those quite unacceptable behaviours have nothing to do with the vast majority of heated debates. Tweeting things which are knowingly untrue, or which are misleading might well amount to a breach of CD3. Tweeting discriminatory remarks would breach CD8. Either could take place within the context of an argument or debate or gratuitiously and without prompting. The BSB should not be trying to shut down debate, it should be regulating offending behaviour. I acknowledge however that it is in the course of heated debate and argument, particularly fast paced twitter frenzies, that errors of judgment are most likely to be made. If that was what the BSB were driving at they could, respectfully, have found better wording.
I struggle somewhat with the insinuation in the last bullet that material that is considered offensive by some might offend against CD5 even where the barrister "reasonably" considers it appropriate. I don't think the BSB should be in the business of policing good taste. One can say the most anodyne things and cause offence in the twitterverse. This is not misconduct. I don't subscribe to the "call everyone a snowflake" school of thought which says we should be gratuitously offensive because we can, but the focus needs to be on "the public" (i.e. the notional public) on whatever is the modern day equivalent of the Clapham Omnibus, not on the oversensitive individual who is offended by everything. Some of the very best legal bloggers say things that are controversial or that are offensive to some. They are fiercely independent and articulate their positions with care and with skill, but with great force. That some will disagree or be offended, or that their posts will spark the most vehement of debates is no marker of misconduct. It is something to be proud of.
And yes, I appreciate that a blog post that has a toilet humour title is winning no prizes in the serious public debate category...
* highly likely