Much guidance has been given by regulators on the use of social media by registrants. For example, the Royal College of Dental Surgeons recently updated its detailed guidelines. However, less guidance is often given to Board and committee members of regulators (although many regulators encourage responsible social media use in their governance documents).
The Canadian Judicial Council recently updated its guidelines for the safe and appropriate use of social media by judges. These guidelines may be instructive for Board and committee members of regulators, particularly those with adjudicative roles. Highlights include the following:
- Judges “can use social media but need to do so cautiously and with a view to their ethical obligations. Improper social media use can undermine the principles of independence, integrity and respect, diligence and competence, equality and impartiality that define the judicial role, as well as public confidence in the judiciary.”
- Judges should review their social media use upon their appointment including the appropriateness of the platform and their connections.
- “Using [pseudonyms] is neither recommended nor prohibited. However, a judge should be aware that taking such means will not preclude third parties from identifying the person with a particular social media account. Moreover, 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.”
- The explicit use of the person’s title and role on platforms is discouraged. Others may view the communications as being directly associated with the judge’s work or organization.
- “A judge should not use social media to conduct independent factual research about a case that is before them.”
- “If, in using social media, a judge inadvertently acquires or receives out-of-court information related to the parties, witnesses, or issues under consideration in matters before them, fairness issues may need to be considered by the judge.”
- Judges should not express their personal opinions about matters that may come before them. However, social media can be used to engage in educational activities that may benefit the public.
- “When creating or interacting with social media content, a judge should be mindful of their ethical responsibilities to treat others with civility and respect and avoid partisan activity. Social media behaviours that might be considered acceptable for a member of the general public may not be appropriate for members of the judiciary.”
- “If a judge is subjected to harassing, derogatory, defamatory, or otherwise abusive comments on social media, they must refrain from responding directly to the comments and should instead refer the matter to …” the appropriate person or institution.
- “Judges should be particularly careful about virtual connections with parties, counsel or witnesses in cases before them, which may raise perceptions of partiality, and require corrective measures. A judge should avoid associating online with individuals or organizations that engage in or countenance discrimination contrary to the law.”
- “A judge should take reasonable efforts to monitor their social media accounts…. 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….”
- “A judge should be mindful that, regardless of the privacy settings they enable, their account or any content associated with their account could still become public. For example, it is possible that someone a judge has permitted to view their social media account may share content beyond the judge’s approved network without first seeking the judge’s consent. Accounts can also be “hacked” by malicious actors who may be able to subvert privacy and security protections.”
While individuals acting as adjudicators in regulatory contexts would probably not be held to a standard quite as high as that for judges (especially if they are members of the profession commenting on general professional issues), these guidelines are helpful. In addition, individuals acting in non-adjudicative capacities (e.g., as a board member) can also find much guidance from this document.