BSB proposed regulation of non-professional conduct and barristers’ use of social media consultation response
Approach to regulating non-professional conduct
Question 1:
Overall, have we struck the right balance between the public interest in preserving public confidence in the profession and individual barristers and a barrister’s rights which are guaranteed under the Human Rights Act 1998 and the European Convention on Human Rights?
Both guidance documents make clear that barristers’ ECHR rights may be engaged by proposed regulation. Until the guidance is applied in practice it is difficult to properly assess whether the right balance has been struck. However, the guidance acknowledges a potential tension, and emphasises the nexus that must exist between the non-professional conduct and professional practice before a regulatory interest exists. As such, an appropriate balance appears to have been articulated.
Question 2:
Do you have any observations on the questions we are proposing to ask when considering whether we have a regulatory interest in non-professional conduct?
No.
Question 3:
Are the case studies included in our draft guidance helpful?
Yes. The case studies provide valuable illustrations of the circumstances to which the guidance may apply. This will be particularly helpful to panels, initially.
Question 4:
Do you have any general comments or feedback on our draft guidance on the regulation of non-professional conduct?
No.
Guidance in the BSB Handbook
Question 5:
Do you consider our proposed drafting changes to the non-mandatory guidance provisions in the BSB Handbook assist in clarifying our approach to the regulation of non-professional conduct?
Yes.
Question 6:
Do you have any general comments or feedback on any of the proposed drafting changes to the non-mandatory guidance?
No.
Social Media Guidance
Question 7:
Do you have any feedback or comments on the new Social Media Guidance?
Yes. Behind the Gown invites the BSB to acknowledge in its Social Media Guidance the scale of online abuse and harassment aimed at women, particularly those who speak out on issues relating to feminism, gender equality, and women’s rights. “Girls who dare to express opinions about politics or current events often experience a very swift, misogynistic backlash”, Laura Bates. Between 2016-18, Amnesty International conducted qualitative and quantitative research into women’s experiences of abuse or harassment on social media. The findings highlighted the toxicity of Twitter for female users - the result of which was contributing to a silencing effect.
There have been occasions when female barristers have received what can only be characterised as a misogynistic backlash online after expressing views on issues affecting women in the law. For example, when tweeting about the experiences of complainants in sexual assault cases. While debate is to be encouraged, rather than engaging with the issue, some tweets from practising barristers discredited the writer’s expertise, requested an apology, or implied the writer needed mental help. Others failed to mention the writer by name or truncated the writer’s title giving the impression of disparagement.
Reflecting the gendered nature of these tweets, Behind the Gown has not - to the same extent, witnessed similar responses from barristers toward male legal professional Twitter users who unapologetically express their views on the law or current affairs. To this extent, we have some sympathy with Amnesty International’s observation that: “Twitter remains fertile ground for reinforcing existing gender inequalities and discrimination against women online. Harmful and negative gender stereotypes of women offline as well as widespread discrimination against women rooted in patriarchal structures, manifest as (violent and) abusive tweets against some women on Twitter.”
Not only do abusive tweets compromise women’s “digital citizenship”, they fuel self-censorship causing women to “watch what they say” simply to avoid negativity, leaving certain (male) voices unchallenged, and more dominant.
“Legal Twitter” is an online, identifiable, community. In an increasingly digitised world, large numbers of legal professionals including solicitors, barristers, and academics - as well as students, use the platform to make contacts, engage with each other, and discuss legal issues and updates. All women barristers, if they wish, should feel able to fearlessly speak out about the gendered nature of the law. This is not just because it is a human rights issue – but also because debates risk becoming one-sided, and communities polarised, if opposing views are shut down in a derisory manner. Further, responses such as those outlined above potentially alienate members of the public to whom the tweets are aimed, as well as barristers and future barristers who may share and fear expressing similar ideas.
In what remains a male-dominated profession, it is, we consider, vital that women feel able to challenge a status quo and speak out on issues affecting women without experiencing online abuse. We believe the BSB has a duty to ensure that female barristers do not experience harassment and bullying on social media, as this forms an extension of the abuse experienced by women offline in the legal profession, [see the IBA report 2019].
We invite the regulator to highlight the link between online misogyny and women who speak out on issues such as those identified above, so that members of the profession with an online presence are, at the very least, cognisant of the problem. Further, that explicitly including the issue in the guidance may provide pause for thought as to the motive and impact of any online response before it is made.
Toxic Twitter - A Toxic Place for Women - Amnesty International
Toxic Twitter- Methodology - Amnesty International
Online abuse of women widespread in UK | Amnesty International UK
Question 8:
Are the case studies in our draft Social Media Guidance helpful?
Yes. If the BSB is minded to adopt our views above, we would welcome a case study which illustrates that point.