‘Gratuitously abusive’ comments may be of interest to the BSB if part of ‘seriously offensive, discriminatory, harassing, threatening, or bullying’ conduct online that targets an individual or group. Sharing such offensive content online without making it clear that you disagree with it is also likely to raise alarm bells as it could be seen as an endorsement. The BSB warns it is in the public interest to regulate such conduct because it demonstrates the barrister’s attitude to people from certain groups, which indicates how the barrister might interact with them and provide legal services to them, and therefore risks access to justice.
The BSB published its Guidance on the regulation of non-professional conduct last week, along with revised social media guidance, and revisions to the BSB Handbook.
The guidance aims to clarify where the boundaries lie in relation to conduct that occurs outside professional practice. For example, the BSB is unlikely to be interested if a barrister receives a fixed penalty notice for not wearing a seatbelt while driving, or is arrested but not subsequently charged during a climate change protest, or has failed to repay a substantial loan to a friend.
However, failure to repay a loan where the creditor has secured a court order or failure to pay VAT or other tax may be of interest as this type of conduct is likely to diminish public trust in the profession. If the barrister is charged with an indictable offence, the BSB is likely to pause any regulatory assessment until after the court case concludes unless the barrister is a potential risk to clients and colleagues.
Nick Vineall KC, Chair of the Bar Council, said: ‘As we know from our own ethical enquiries service, issues relating to social media and barristers’ private lives can be difficult to navigate.
‘We think that the BSB has struck the appropriate balance, and it is right that the regulator focuses on the use of language that is seriously offensive, discriminatory, bullying or harassing. Regardless of where the line is drawn in terms of professional misconduct, there will be a huge space where comment that does not amount to misconduct is nevertheless unkind, unnecessary, and profoundly undesirable. Ultimately, if you would not say something to someone’s face, don’t say it to them, or about them, on social media.’
