The new rules are:
1. Blogging by judges is still okay.
2. You cannot identify yourself as a judge.
3. You cannot post content which might lead someone to question your impartiality.
4. These same rules apply to anonymous blogging.
Well, let's dissect this a bit.
1. They didn't ban judges from blogging all together, so that's a good sign.
2. Their concerns about anonymous blogging - that it's not a guarantee that your secret identity won't be found out - is justified.
3. Now for the thing about identifying as a judge. People aren't stupid. It's not very hard to figure out that someone's a judge if they use their real name. So, while not saying you're a judge will help keep the general public in the dark (because most people won't google you to figure out who you are), it's not a guarantee that they won't find out.
4. And now for the crux of the matter, bias. I'm always a bit conflicted on this one. People often raise the same concerns about journalists - not only concerns about their supposed bias, but concerns that the bias not show. Is that a nuance without a difference? After all, a journalist is just as biased whether he shows his bias or not. The only issue with revealing his bias is that after it's revealed, at least now we know about his bias. And isn't it better to know about the bias of journalists, and judges, than not know about it? Which also raises the point of "why just judges"? Isn't this concern relevant to a lot of professions - journalists, any government employee?
One downside of knowing someone's bias is that people could try to play the refs, as it were. If you knew a judge hated bloggers, for example, you might try to get before that judge (or avoid him, as the case may be) if you had a case involving a blogger. You also might try to craft your case to appeal to the judge's bias. Same goes for pitching a reporter if you knew their biases.
One problem I foresee - defining "bias." What exactly is it that the judges shouldn't be opining about? The guidance isn't clear.
Second problem, the guidance only applies to "blogging." What about Twitter? What about Facebook?
And finally, to cede one point to those concerned about judicial blogging, one could argue that blogging is no different than any other kind of writing, be it in a newspaper or where. So why issue special guidance? Because blogging is online, and is often done without an editor. Thus the sphincter of better judgment may be missing. Just as with emails, blogging makes it far too easy to fire off a nasty answer (or comment) to someone who ticks you off. It's an impulse you might not have followed through on, or at least would have caught it after the fact but before publication, had your comment been prepared for publication in the Sunday Times, and had to go through an editor first.
Now for the memo:
Blogging by Judicial Office Holders
This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.
Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.
Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.