This is a notable entry from the Justis International Law & Technology Writing Competition 2019 in the category of Social Media, Technology and the Law, by Kirsee Ali of Hugh Wooding Law School. Find out more about our next competition’s topics here.
One striking thing about social media is that it enables us to make online “friends” with persons we never interacted with before. We may only know some of these persons through a mutual friend or be interested in their online presence and media content, so we follow them on various platforms. But what happens when a public figure has an online presence? Or furthermore, an advocate, politician or judge? Does interacting with someone within the judiciary jeopardize its unprejudiced nature?
I first began thinking about this after reading an article written by Christopher Fonzone and Joshua A. Geltzer concerning the unconstitutionality of politicians blocking persons on social media. A politician having a public presence and using that platform for their campaign and other political moves might put themselves at risk for opponents attacking them via these said channels. It may then become a public forum and some sort of national or even international debate similar to a summit of leaders. Except, in this case, the average citizen now has a national voice. Their concern may even demand an answer because they are directly addressing the individual in their public capacity.
After reading about the case concerning Phyllis Randall, who encouraged commentary from her constituents in her Virginia County and Brian Davison, who was temporarily blocked for adverse comments being posted to her Facebook page, I wondered what past leaders would have done in this modern era. Can social media be changing history? Imagine a war taking place with the dictator having a social media presence. Or perhaps a figure of world peace like Mahatma Gandhi having a Facebook page? How would these influencers interact with their opponents and can an online presence hold politicians more accountable now?
An online presence may even become a requirement for some politicians and parties seeking to win an election. Getting the voice of the voting public heard can have widespread benefits. It can impact manifestos and the mass majority may be pleased by the actions of their future politicians. There is a dark side to this however. As most public figures have a publicly-shared presence on many platforms, some of them also have a private presence, sharing personal details with close family and friends. This is where the waters can become murky.
In October of 2018, a Criminal Court judge found himself at the receiving end of a Facebook Friend Request in Trinidad and Tobago the day before sentencing was to be announced after the trial of a rapist sentenced 14 years since the commission of the crime. The daughter of the accused sent a request to Justice St Clair-Douglas on his personal account and the honourable judge was forced to address it, perhaps fearing that the matter would be raised by the defense if he did not. The young lady was even present at the sentencing when it was addressed. He spoke to the seriousness of such an action and demanded an explanation from the defense counsel. A number of ethical issues could have been raised and a host of remedies may have been meted out to the accused had the judge not mentioned it firstly. One can only imagine the public outcry for a mistrial, stay or acquittal due to a conflict of interest regarding a judge who could no longer recuse himself after presiding over the entire matter. If the matter was not addressed, the defense would have successfully checkmated the courts and a guilty person would have been set free.
To know that overseers of the law, the upholders, those who keep the public politicians functioning within the ambit of the Constitution, can be susceptible to incriminating situations, is alarming. For it is one thing to have a politician seeking the approval of his/her voters by taking suggestions and criticism on their job performance. It is another to have an arm of the law come under potential attack by such simple means and trivialize a serious state function: trial and conviction. Perhaps more stringent laws are needed for those practicing and presiding within the legal profession simply because they are the foundation of the practice and implementation of the law itself. And the law is the underpinning of a functioning society in any democratic nation. It may be a matter of ethics and many related articles have addressed this issue.
Shaziah Singh wrote about the possibility of a judge befriending offenders in the juvenile court to keep track of their progress. However, this may be just one incident that has a positive effect. I would argue that a judge cannot be friends with any offender sentenced under him/her. A judge must be impartial and knowing the defendant in a personal capacity can once again stain the clear waters of fairness for a repeat offender or for an advocate making a plea in mitigation. The National Center for State Courts advised judicial candidates against establishing a Facebook account and this practice may become international law spreading across all social media platforms in order to keep judges, advocates and even court officials off of the internet in keeping with impartial law enforcement. Who knows, we might see this become a trend with law enforcement officers as well. It will be after all, better to be legally ethical than sorry and I predict that it will become an urgent issue in the near future.
Kirsee is going into their second and final year at law school after having studied and gaining an honours degree from the University of London in my LLB. They are currently an intern at the Solicitor General’s Department with the Ministry of the Attorney General and Legal Affairs in their country as part of their mandated in-service training. They previously studied Mechanical Engineering and hope to work as a State Advocate in the near future. Their particular interests are Contract and Labour laws.
 Washington Post Sep 26th 2018, Commentary: Why it’s unconstitutional for politicians to block people on social media – Christopher Fonzone and Joshua A. Geltzer
 Davison v. Loudoun County Board of Supervisors et al, No. 1:2016cv00932 – Document 11 (E.D. Va. 2016)
 Daily Express Oct 26th 2018, Facebook friend request for judge in rape case – Nikita Braxton-Benjamin
 Journal of Law, Technology & the Internet · Vol. 7 · 2016, FRIEND REQUEST DENIED: JUDICIAL ETHICS AND SOCIAL MEDIA – Shaziah Singh
 National Center for State Courts Nov. 2018, Social Media and Judicial Ethics – Cynthia Gray,