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No bright line between private and public tweeting for professional misconduct

It is possible for the social media activity of professionals to amount to professional misconduct, even if seemingly made in a personal capacity and where freedom of speech is claimed. The case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin), holds that there is no “bright line” between conduct that falls within the private realm as opposed to that which is sufficiently public to engage a professional disciplinary jurisdiction. It is sometimes argued in police misconduct hearings that private social-media behaviour of officers falls outwith professional misconduct – that might be the case on particular facts but the instant case shows that this is not necessarily so.

A young black female student called for ‘decolonisation’ of English degrees in Cambridge University. In response, Martin Diggins sent a tweet to the student union women’s officer and the university stating “Read it. Now; refuse to perform cunnilingus on shrill negroids who will destroy an academic reputation it has taken aeons to build.” The Bar Standards Broad (BSB) found that to amount to misconduct and imposed a fine of £1,000. Martin Diggins appealed.

The interesting point of the decision, for the purpose of this blog, was whether the tweet, sent by a non-practising barrister, fell outside the misconduct panel’s jurisdiction. Warby J held that there was no “bright line” to be drawn between that which fell within the private realm and that which was sufficiently public to engage the disciplinary jurisdiction. Ultimately, the question for a disciplinary panel was whether the conduct admitted or proved was likely to undermine trust and confidence in an individual or the profession [72].

Warby J approved the panel’s decision that the matter fell within its jurisdiction [73]. The twitter handle took a user to a website where Martin Diggins was identified as a barrister, which crossed the public/private divide. The tweet was not taken down, it was directed to Cambridge University and the students’ union women’s officer and was to the world “at large” – rather than a private conversation. Further, the words were seriously offensive. The reference to “refuse to perform cunnilingus on shrill negroids” was racially charged and derogatory to women [20].

It was appropriate to interpret the tweet pursuant to the approach in Stocker v Stocker [2019] UKSC 17; [2019] 2 WLR 1033 at [25]-[26] and [42]-[45]. That is, the panel had to decide how a tweet on Twitter would be interpreted by a social media user, keeping in mind the way in which tweets were made and read and that it would be wrong to engage in elaborate analysis of a tweet, which was a casual medium and where the essential message conveyed was likely to be absorbed quickly by the reader [11].

The argument that this was an unlawful interference with convention rights was also dismissed. The BSB code of conduct pursued the legitimate aim of maintaining public confidence in barristers and the profession generally, other barristers had a proper and legitimate interest in ensuring that their reputations were not tarnished by association with those who misconducted themselves professionally and this protected the rights of others who were entitled to expect barristers to adhere to high ethical standards [75].

Warby J noted that although the tweet was said to be casual, uninhibited and ill thought-out, some of the most damaging and hurtful statements were those made casually, without proper forethought or self-restraint [82]. Further, although it was said that Twitter was “famously rude and offensive and complaining of that is like going to a Motorhead concert and complaining it is too loud”, it was not a matter of common knowledge that everyone on Twitter behaved in such a way and, even if they did, a descriptive norm of that kind could not confer a right on any individual user to post rude or offensive messages [83]. In those circumstances, the panel had not taken an unduly narrow view of the right to freedom of expression [84].

Finally, Warby J rejected the submission that a single tweet could not cross the threshold of serious misconduct, stated in Walker v Bar Standards Board PC 2011/0219, which held that the stigma and sanctions attached to the concept of professional misconduct were not to be applied for trivial lapses rather than for misconduct which was properly regarded as serious or reprehensible [16], [85]. He observed that it could not be sensibly suggested that a limit of 140 characters made it impossible for a person to post a grossly offensive tweet, otherwise worthy of disciplinary measures [86].

The appropriate outcome remained a fine of £1,000, which was “low-level” [97] and not manifestly excessive even for a person of unblemished previous good character [99].

Coming after the separate case of R (Miller) v The College of Policing & Anor [2020] EWHC 225 (Admin), concerning Tweets considered to be offensive to transgender persons, this is a reminder to all professionals that offensive tweets may nevertheless amount to professional misconduct. It is difficult to know whether the level of sanction would have been any different had Martin Diggins been an actively practising barrister and/or whether the whole outcome would have been different had his Twitter account not led to a website identifying him as a member of the profession. It is sometimes a point of contention as to whether off-duty conduct by police officers on Twitter or Facebook – or other types of social media, can properly amount to professional rather than personal misconduct. The suggestion from this case is that it can be, depending on the facts.

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