Last week the BSB issued new Social Media Guidance, which seeks to help barristers understand how their duties under the BSB Handbook may apply to their use of social media.
The BSB Handbook
The guidance sets out the Core Duties and Conduct Rules in the BSB Handbook which may be engaged in relation to a barrister’s use of social media.
Where social media is used in a professional setting, the following Core Duties must be borne in mind:
- Core Duty 3: You must act with honesty, and with integrity.
- 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.
- Core Duty 6: You must keep the affairs of each client confidential.
- Core Duty 8: You must not discriminate unlawfully against any person.
Where social media is used outside of a barrister’s professional life, Core Duty 5 as outlined above may be engaged, as well as Rule C8: You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).
Justified interference with the right to freedom of expression?
Within the Guidance, the BSB recognise that the use of social media is likely to engage a barrister’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), but state that this (qualified) right must be balanced against other ECHR rights and values.
It is well established that a regulatory or professional body such as the BSB may, in pursuit of legitimate aims (such as safeguarding the public and upholding confidence in the relevant profession), interfere with the right to freedom of expression of its members or registrants. In seeking to determine when interference with the right to freedom of expression is justified, the Courts have generally found that the language used in social media may be more important than the views expressed. For example, in the case of R (on the application of Ngole) v University of Sheffield [2019], the Court commented that: “the obligation to maintain confidence cannot extend to prohibiting any statement that could be thought controversial or even to have political or moral overtones…. The expression of such views in offensive language, however, might well damage confidence…In our view it cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”.
Similarly, in Diggins v BSB [2020], the Judge concluded that the focus of the Panel “quite properly … was not so much on the message as the likely effect of the florid language employed to express that message”.
In Holbrook v BSB [2022], The Panel concluded that “…given the importance ascribed to freedom of expression in the authorities….it follows that, for the expression of a political belief to be such that it diminishes the trust of the public in the particular barrister or in the profession as a whole will require something more than the mere causing of offence…..[it would need to have] gone beyond the wide latitude allowed for the expression of a political belief, particularly where the speech was delivered without any derogatory or abusive language and the objection was taken to the political belief or message being espoused, rather than the manner in which that belief or message was being delivered”.
The BSB guidance picks up on this focus by stating: “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, the BSB also state that there may be cases where the views or opinions themselves are such as to justify regulatory action, for example where a post is dishonest or discriminatory. In particular, discriminatory behaviour may indicate how a barrister might interact with people within certain groups and thereby alienate clients, future clients and members of the public. This could be seen as a risk to access to justice, and interference in such conduct is likely to therefore be justified in the public interest.
A wide net
The guidance states that any conduct on social media which might be inconsistent with the standards expected of barristers may breach the BSB Handbook. By virtue of the public nature of social media, anything a barrister posts online could be read by anyone and could be linked back to their status as a barrister, regardless of whether they refer to their professional status.
While deliberately emphasising that the net is wide in terms of the scope of conduct on social media which might justify regulatory interference, the guidance does go on to provide a non-exhaustive list of examples of posts or comments which may fall foul of the Handbook, including:
- Posting material online that is dishonest.
- Making comments that target a person or groups of people which are seriously offensive, discriminatory, harassing, threatening, or bullying.
- 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.
- 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.
The guidance also sets out some helpful case studies and lists the factors which the BSB will take into account when considering a potential breach of the BSB Handbook relating to a barrister’s conduct on social media, including:
- How a hypothetical, ordinary reasonable person would be likely to respond to your conduct, having regard to the wider context in which it occurred.
- The substance of what you post (including the type of speech engaged, such as whether it is “mere gossip” or contributes to a debate in the public interest).
- The manner in which you express your views (including the language used), the mode of publication, and the broader context.
- The impact of your conduct.
Conclusion
BSB Director General Mark Neale recognised that this guidance does not indicate a significant change in the BSB’s approach, but instead provides greater clarity to barristers. This clarity is welcome. Engaging in lively (and sometimes controversial) debates and discussions is of course something which often comes naturally to barristers, and this must be allowed within a democratic society. The expression of different views, even in a public forum, should not be stifled by a disproportionate fear that this will have an impact on an individual’s professional standing. On the other hand, there are obvious limits to what is acceptable for a barrister to say on social media: there is no public interest in the dissemination of comments which are discriminatory or offensive. This guidance goes some way to help barristers to navigate this path.
Further Information
If you have any questions or concerns about the topics raised in this blog, please contact Julie Norris or any member of the Regulatory team.
About the Author
Julie Norris is a partner in the Regulatory team. She predominantly acts in legal services sector, advising law firms, solicitors, and barristers on regulatory compliance, investigations, adjudication, enforcement, and prosecutions. Julie is top ranked in both major legal directories for her work in the regulatory field.
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