Laws of Eve | The small, small world of social media
The Disneyland chorus released in 1997 said:
It’s a world of laughter
A world of tears
It’s a world of hopes
And a world of fears
There’s so much that we share
That it’s time we’re aware
It’s a small world after all
We are confronted with the reality that we live in an ever-shrinking world when we consider the impact social media has had on various aspects of our lives. One example is the concept of ‘six degrees of separation’ – the idea that all people in the world are six or fewer interpersonal connections away from each other – which many believe has been reduced to two degrees because of social-media connections. Another example is how the word ‘friend’ has been redefined by social media.
Where am I going with this? For some people, their whole lives are chronicled on some form of social media to the extent that it is never a secret where they have been, who they have been with, or who their friends are. In fact, it is that very openness that has landed some people in trouble. One example is the American who reportedly posted a photograph on Facebook about an ‘industrial hemp plantation’ in Myanmar. The plantation turned out to be a 20-acre marijuana farm that led to the arrest of three persons for running an illegal marijuana operation.
Let us consider how social media and the connections that people share affect legal proceedings.
Although the legal profession continues to expand in Jamaica, many lawyers and judges know each other well, attended school together, are related, move in the same social circles, attend the same church, or are members of social groups. Sometimes these connections are well known, but there are some instances when the connection between a judge and the lawyer who is appearing before him or her is not known. The question is, what types of connections need to be disclosed or could warrant a judge recusing himself or herself from hearing a matter?
There is no easy answer. While every effort must be made to ensure that litigants get a fair trial because even the appearance of bias may be enough to taint a hearing, the fact is that not all connections are red flags for bias. For example, although the issue has not yet been considered in Jamaica, in some jurisdictions it has been confirmed that a judge may proceed with a hearing although he is a Facebook friend of a lawyer who is appearing before him.
In November 2018, the Florida Supreme Court considered an appeal by a law group against a decision that found that a judge was not disqualified from hearing a matter due to the potential for bias because she was Facebook friends with the opposing counsel – Law Offices of Herssein and Herssein, P.A. v United Services Automobile Association. On the petition for prohibition, the law group argued that, although there was nothing to prevent a judge from having a Facebook presence, that judge should not be friends with the lawyer appearing before her.
In acknowledging that judges in the State of Florida are elected officials, the majority (4:3) that dismissed the appeal noted that the absence of a social-media presence through which judges can communicate with their constituents could mean political suicide. However, the more compelling aspect of the judgment dealt with the question of whether social-media friendships equate to true friendships. The chief justice, who urged judges to exercise restraint in the use of social media, said that, “No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”
Given the fact that judges are not elected officials in Jamaica, would a more conservative position be taken? Until that debate starts in Jamaica, perhaps the word of caution from the dissenting judgment, which referred to judges, should guide all adult users of social media – “[Adults] do not have the unfettered social freedom of teenagers.”
- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to firstname.lastname@example.org.