Social Media and other communications

The CILEX Code of Conduct (the Code) requires you to (among other things):

• maintain high standards of professional and personal conduct and justify public trust in you, your profession, and the provision of legal services (Principle 2)
• behave with honesty and integrity (Principle 3)
• respect client confidentiality (Principle 5)
• treat everyone fairly and without prejudice (Principle 6)
• maintain independence (Principle 7)

You must be able to demonstrate that you have complied with the Code at all times during your professional life. There are also times when the Code may also be relevant to your personal life, where your conduct has the potential to impact on your reputation as a legal professional and/ or undermine public confidence in the profession as a whole. A failure to comply with the Code where required may amount to professional misconduct leading to disciplinary action.

As a regulated legal professional, you are held to a higher standard of behaviour compared to other members of society. Communicating in an irresponsible way, on social media or otherwise, has the potential to cause serious offence and reputational damage that diminishes public trust and confidence in the profession. In addition, the inherently public nature of social media means that anything you post online could be read by anyone and linked back to your status as a regulated CILEX Professional, regardless of whether you specifically identify yourself as a such.

Even if your posts or comments are only available to a limited audience, any content you create, or exchange publicly can potentially be copied or shared with third parties without your specific consent. It is important to realise that even the strictest privacy settings have limitations. Once shared the content cannot be easily recovered and those aware of your association with CILEX may think that you speak on behalf of CILEX members and the legal profession.

The more closely connected your private communication is to your professional practice or activities, the more likely we are to take it into account. This may be where:

• the communication relates to, or is connected to, your work, regardless of whether you intended the communication to be professional or personal;
• you represent yourself, or are otherwise identifiable as a CILEX member or someone we regulate, even if this isn’t clear in the communication itself;
• the communication undermines, or has the potential to undermine, public trust and confidence in the profession.

There are many ways your private communication(s) can undermine public trust and confidence in the profession. For example, posting, sharing or showing approval of discriminatory content, particularly against minorities and/ or vulnerable groups, could indicate to the public and consumers how you may interact with people from those groups. Individuals from those groups seeking legal advice and services may in turn feel alienated and uncertain about engaging with you or your firm.

Public trust and confidence in the profession could also be undermined where you engage in vexatious communications during personal litigation that results in the court’s time being wasted, or where your communications lead to criminal charges, a caution or a conviction, for example under the Malicious Communications Act 1988 or Protection from Harassment Act 1997. This is because criminal behaviour is incompatible with the standards expected of legal professionals, who are expected to uphold the rule of law and the impartial administration of justice. Legal professionals also owe a primary, overriding duty to the Court. These obligations are reflected in Principle 1 of the Code and its associated outcomes.

Where your private communication(s) can be linked to your professional practice, we will take action if the content and manner in which you express yourself engage the Code and has the potential to undermine or affect adversely the confidence and trust placed in you or your profession by your client, your employer, professional colleagues, the public and others. Examples of the types of communications that could result in disciplinary action are set out in the section below detailing our approach.

We aim to strike a balance between meeting our regulatory objectives and  the rights you may have, such as those under the Human Rights Act 1998 and European Convention on Human Rights (ECHR), including the right(s) to:

• respect for private and family life, home and correspondence (Article 8);
• freedom of thought, conscience and religion (Article 9);
• freedom of expression, including the right to hold opinions and receive and impart information and ideas (Article 10);
• freedom of assembly and association, including the right to hold meetings, events and demonstrations, rallies and protests both online and offline (Article 11).

Certain duties and responsibilities are attached to these rights and freedoms. For example, the right to privacy only applies where you have a reasonable expectation of privacy, which may be diminished if your communication is publicly available. Although you are entitled to freedom of expression under Article 10, you cannot use this right to destroy the rights and freedoms of others. Case law from the European Court of Human Rights has found that seeking to destroy the rights and freedoms of others includes extreme forms of hate speech, a threat of or incitement to violence, xenophobia, racial discrimination, Antisemitism, Islamophobia and Holocaust denial.

Ultimately CILEx Regulation may take action that interferes with your rights under Articles 8, 9, 10 and 11 provided it is in accordance with the law, and where the action taken is necessary in a democratic society for public safety, for the prevention of disorder or crime, to protect morals, or to protect the reputation or rights of others, such as other members of the profession and consumers of legal services. This means, for example, that we can take proportionate action to meet our regulatory objectives under the Legal Services Act 2007 and in accordance with our rules and guidance to maintain public confidence in the profession and protect the public.

Where we receive reports about CILEX members concerning improper communications that engage the Code, we will investigate and take action where necessary to meet our regulatory objectives. As part of our investigations we may receive, monitor and read your communications, including social media posts, whether accessed directly or provided to us by third parties.

We will also consider the content and effect of your communications, including (among other things):

• the objective meaning of the language used, regardless of the context in which it is used. For example, using objectively racist language will likely result in disciplinary action. We will consider what meaning a reasonable person would attach to the words, the ordinary meaning of the language used, any common uses, and any published definitions, such as those provided by intergovernmental groups such as the Holocaust Remembrance Alliance in respect of antisemitism, and the Anti-Muslim Hatred Working Group in respect of islamophobia.

• the manner of your communication, including the mode, location and frequency of the communication, the recipients of the communication, whether it was made on a closed or public platform and the tone of your communication.

• the context and motivation behind your communication, including the purpose of your communication, the reasons for the language used and what you were hoping to achieve from it, as well as your overall conduct and attitudes. For example, evidence of hostility and/or or a discriminatory attitude towards particular individuals or groups is likely to result in disciplinary action, even if the words used are not inherently discriminatory, offensive or otherwise incompatible with the Code, and even if you only intended it as a joke. This might happen where ordinary, or even polite words and language are used to propound a message that is inappropriate, offensive, derogatory or discriminatory towards a particular group.

• the impact of your communication on others, particularly on those from protected groups, vulnerable persons and minorities. We will consider the likely effect of the language used to express the message as well as the message itself.

• the views, opinions or reactions of others, including any individual who reported the conduct to us and any public comment on your behaviour. We will also consider how a hypothetical ordinary reasonable person would be likely to respond to your conduct in the wider context in which it occurred.

We are likely to investigate and take disciplinary action in relation to communications that:

• include demeaning, insulting, abusive or threatening comments, or that are menacing, indecent or obscene and likely to cause significant distress, or serious offence to others
• contain extreme or highly offensive views that may cause reputational damage to the profession e.g. support for illegal activity such as terrorism or money laundering
• are discriminatory towards those with a particular protected characteristic under the Equality Act 2010 (disability, sex, age, race, religion, sexual orientation, gender reassignment, marital status, pregnancy and maternity)
• unfairly discriminate against those from minority and/ or vulnerable groups
• victimise, harass, bully a person or group(s)
• indicate a pattern of frequent or excessive communications of concern, including vexatious communications that waste the court’s time
• are dishonest, false, misleading or otherwise lack integrity. This includes sharing content without regard to its substance and/or contrary to established legal practice
• undermine the rule of law, or that could discourage consumers from seeking legal services. This includes making unfounded and gratuitous criticisms or adverse comment of courts, judiciary and justice system that are misleading and/ or have no sound factual basis. The judicial system is not immune from fair public comment and criticism, but a balance needs to be struck so as not to undermine public confidence
• breach confidentiality, privacy, or undermine your independence
• that you continue to share in defiance of previous advice or warnings and/or fail to remove when requested to do so
• lead to criminal charges, a caution or conviction
• show approval for, or could be seen as your agreement or endorsement of, these types of wrongdoing (for example by failing to say that you disagree with the content or nature of the communication)
• otherwise breach the code in a serious way that is likely to undermine public trust and confidence in you, the profession, the provision of legal services and the impartial administration of justice.

This is a non- exhaustive list of examples of the types of communications that are likely to engage the Code in a serious way and diminish public trust and confidence in the profession.

Using foul language, although unprofessional, is insufficient on its own to result in disciplinary action. In addition, we will not usually take action in respect of communications that are shown to be a fair and legitimate comment or opinion on any matter, including religious and political issues, even if others disagree with the content, unless the tone of the communication is, for example, aggressive, insulting, seriously offensive, abusive, derogatory or discriminatory.

We will always consider the circumstances of the case and conduct a balancing exercise to ensure that any action we take is proportionate. Further information about our approach to enforcement is available here:  Enforcement – Rules and Guidance – CILEx Regulation.