The Bar Standards Board (BSB) has introduced new guidance on social media which “gives greater recognition to a barrister’s right to freedom of expression” while warning that this has to be balanced against the rights of others.
The BSB also approved at a board meeting yesterday a three-month consultation on the regulation of non-professional conduct, or conduct in a barrister’s private life, because it believes the existing guidance is “too narrow”.
The regulator said it had decided to introduce the social media guidance, which will form part of the consultation, immediately on an interim basis because of concerns raised internally and following “recent decisions” from Bar disciplinary tribunals.
The new guidance at five pages is more than twice as long as its predecessor introduced in 2019 and begins by referring to the right to freedom of expression under Article 10 of the European Convention of Human Rights, an issue not raised in the earlier guidance.
“We will undertake a careful balancing exercise on a case-by-case basis to determine whether any proposed interference with your Article 10 rights is justified and proportionate.”
In the first case study, a barrister sends “seriously offensive private messages” on LinkedIn to a person with whom the barrister has recently connected on the platform, which the barrister has been using to advertise services and to network.
Since this is business-related activity by a practising barrister, he or she is likely to be regarded as having behaved with a lack of integrity and diminished trust and confidence in the profession.
A barrister who sends WhatsApp messages to a client while they are giving evidence in a criminal trial is likely to have broken the same rules, unless they have the consent of the opposing side or the court.
In another example, a barrister posts a number of tweets directed at a transgender woman, “in which the barrister deliberately misgendered and threatened them”.
This conduct is “likely to be considered seriously offensive and discriminatory” and acting with a lack of integrity.
However, in a fourth case study, a barrister “posted a series of tweets on Twitter in which they were highly critical of various domestic political figures and the current government”.
As the content was of a political nature, “which sits at the top of the hierarchy of free speech values” and Article 10 is engaged, as long as the manner in which the barrister expresses the views is not “seriously offensive”, the BSB is “unlikely to have a regulatory interest”.
The guidance particularly highlights as examples of social media behaviour that may breach the rules the making of comments which are “seriously offensive, discriminatory, harassing, threatening or bullying”.
This includes “making comments which are of an indecent, obscene, or menacing character or which are gratuitously abusive”, but “the use of foul language alone is unlikely to amount to a breach of the BSB Handbook”.
Further examples are making critical comments about judges or the judiciary beyond what is ‘discreet, honest and dignified’ and sending “confidential communications to a client over social media where confidentiality cannot be guaranteed”.
The BSB said in a board paper that the extent to which regulators can “legitimately intervene in matters that arise in a professional’s private or personal life” was “increasingly the focus of fierce debate and has led to a number of high-profile cases in recent years, most notably the judgment of the Divisional Court in Ryan Beckwith v Solicitors Regulation Authority”.
In the consultation paper on the regulation of non-professional conduct approved yesterday, the regulator said it believed that the emphasis in the current guidance that conduct in a barrister’s private or personal life was not a breach of the rules unless it involved “an abuse of professional position” was “too narrow”.
The BSB said it was likely to have a regulatory interest in non-criminal conduct outside a barrister’s professional life “that is, or is analogous to, conduct that would contravene other relevant provisions of the BSB Handbook (or standards that are necessarily implicit from it) if it occurred during a barrister’s professional life.
“This is because such conduct is more likely to have a closer connection to the profession and have a bearing on the public’s trust and confidence in the barrister or the profession.
“When deciding whether non-professional conduct might have an impact on the public’s trust and confidence in the barrister or the profession, we also consider that the closer the link between the context or environment in which the conduct occurred and that of the profession, the greater the likelihood that we will have a regulatory interest.”