In the traditional sense, Friend is person who seeks the society or welfare of another person whom he holds in affection, respect, or esteem. The American Heritage Dictionary defines term 'friend' as a person whom one knows, likes, & trusts. 'Traditionally, a 'friend' is a person attached to another person by feelings of affection, love & regard. Shorter oxford English Dictionary defines term 'Friend' as a person joined by affection & intimacy to another. But the term 'friendship' in the traditional sense does not necessarily signify a close relationship. It is usually understood that friendship exists on a broad scale because some friendships are close and while others are not. Friendship is a word of broad and varied application.Therefore, mere existence of a friendship, in and of itself, does not characteristically reveal the degree or intensity of the friendship. Similarly, mere existence of a friendship between a judge and a lawyer appearing before the judge, without more, does not reasonably convey to others the impression of a characteristically close or intimate relationship. No reasonably prudent person would fear that s/he could not receive a fair and impartial trial based merely on the fact that a judge and counsel appearing before the judge are friends of an indeterminate nature. There are countless factors which may cause some members of the community to think that a judge would be biased in favor of a complainant or counsel for a complainant, e.g., friendship, member of the same religious congregation, neighbors, former classmates or fraternity brothers. However, such allegations have been found legally insufficient when asserted in a motion for disqualification. In Ball v. Yates accusations of friendship between three Supreme Court judges and the governor, who was a party, were not sufficient to constitute a legal basis for disqualification.
FRIENDSHIP ON FACEBOOK
With aforementioned premise, let’s now turn to address the Facebook “friendship” issue. Facebook provides users with several means of communicating with each other. Users can send private messages to one or more users. Users can also communicate by posting information to their Facebook wall, which is part of each user’s Profile Page. A Facebook wall post can include written comments, photographs, digital images, videos, and content from other websites. Facebook users create online profiles to share information about themselves with other Facebook users.Once registered, a Facebook user can customize their profile by adding personal information, photographs, or other content. They can also establish connections with other Facebook users by ‘friending’ them & the connected users are thus called 'friends'.Facebook users may choose to make all or part of their Facebook information public. Nature of Facebook friendship is the crux question of the matter. The word “friend’ on Facebook is a term of art. A Facebook friend may or may not be a friend in the traditional sense. In its most basic nous, a Facebook friend is a person digitally connected to other person by virtue of their Facebook friendship. Facebook friendship is not equivalent of traditional friendship. The establishment of a Facebook friendship does not objectively signal the existence of the affection and esteem involved in a traditional friendship. Today it is commonly understood that Facebook friendship exists on an even broader spectrum than traditional friendship. Traditional friendship varies in degree from greatest intimacy to casual acquaintance. Facebook friendship varies in degree from “greatest intimacy” to “virtual stranger” or “complete stranger.” So Facebook “friendships” are more casual and less permanent than traditional friendships.
LEGAL STANDARD AND CYBER FRIENDSHIP
It is no secret that the friend label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people. Some people have thousands of Facebook “friends.” Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends.’ Many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology suggestions rather than personal interactions. This presents two major questions that is subject to de novo review:
- Whether a reasonably prudent human would fear that they could not get a fair and impartial trial because the judge is a social media friend with a lawyer who represents a prospective witness and party to the lawsuit?
- Whether social media friendship conveys or permits that they are in a special position to influence the judge?
LAWYERS RESPONSIBILITY
Lawyers are liable for all content that they post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page. If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non- complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.
'JUDICIOUS USE' OF ELECTRONIC SOCIAL MEDIA
Judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety. In recent years, new and easy-to-use technology and software have been introduced that allow users to share information about themselves and to post information on others' social networking sites. Such technology, Which has become an everyday part of global culture, is often updated, and different forms undoubtedly will emerge. Social interactions of all kinds, including ESM, can be beneficial to judges to prevent them from being thought of as isolated or out of touch. Assuming the bench, judges accept a duty to “respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” Although judges are full- fledged members of their communities, nonetheless, they should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens. All of a judge’s social contacts, however made and in whatever context, including ESM, are governed by the requirement that judges must at all times act in a manner “that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” and must “avoid impropriety and the appearance of impropriety. “This requires that the judge be sensitive to the appearance of relationships with others. Therefore, judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. Judges must be very careful in their interactions with others when using ESM. Judges must assume that comments posted to an ESM site will not remain within the circle of the judge’s connections. Comments, images, or profile information, some of which might prove embarrassing if publicly revealed, may be electronically transmitted without the judge's knowledge or permission to persons unknown to the judge or to other unintended recipients.
CONTROVERSIAL SOCIAL MEDIA AND BLOGGING ACTIVITIES
Justice (Retd.) Markandey Katju’s are frequently in limelight for his controversial social media and blogging activities. Mumbai lawyer Gautam Patel, before he was elevated to the Bombay High Court, was heavily into Twitter and ran a very educative and informative blog, but suspended these activities before he donned judicial robes. In 2010, the Times of India carried a report on some judges of the Bombay High Court and City Civil and Sessions Court signing up on Facebook for “staying in touch with family and friends” but we are still unaware if any action was taken against them and it is also unknown that who these “friends” were, and if any of them had been involved in any litigation over which a particular judge was presiding. There are good grounds for approaching this issue with concern. Judges are supposed to be impartial to any kind of influence, so every tweet and Facebook post would obviously be dissected for any hint of bias or corruption. A person whom a judge “friended” or “followed” on Twitter today could be standing before him either as a petitioner or an accused tomorrow. It is true that friendship in real life and in the online sphere aren’t exactly the same , and one Twitter user could well follow another even if he loves to hate him, or even just keep an eye on him, but a considerable degree of interest is definitely involved. If a judge shows interest in a person, there definitely would be sharp questions from lawyers, besides a few raised eyebrows. Further, if judges are commenting on social media, it would be a great boost to judicial transparency, giving the public a clear idea and valuable insights into judicial thinking. It would be a welcome departure from the inscrutable veneer which judges keep around themselves. In Indian judicial this topic has not entered the domain of discourse and consideration. There are divergent opinions on the issue of permissible role of a judge in social Media. the Supreme Court of India in cases like High Court of Judicature for Rajasthan v. Ramesh Chandra Paliwal and Daya Shankar v. High Court of Allahabad, have given paramount importance to the fact that ‘judges have to live and behave like hermits. Their mission is to supply light and not heat.’ While, the nine-judge Bench in Indra Sawhney v. Union of India has held that the social change has to be ushered in as expeditiously as possible but at the same time with the least friction and dislocation in national life. Thus administration of justice has to change with the changes in social usages and perspectives. With the influx of Facebook, the legal fraternity in India has also embraced this change and entered the social media. However, the aforementioned conflicts have augmented the sustenance of ambiguity in Indian scenario. It is pertinent to note that ESM network allows individuals with a common interest interact with the like-minded. N. Paul Vasanthakumar, Chief Justice of Jammu and Kashmir High Court issued a circular condemning the judicial officers for developing a ‘Facebook-friendship-club-culture’ with advocates and ‘members of civil society’. The circular termed the conduct as a misdemeanor and severe violation of judicial code of conduct. Previously, the issue came up succinctly when some judges of Bombay High Court and District Court signed up on Facebook for ‘keeping in touch with their family and friends’. However, even after such instances there is a paucity of concrete guidance system leading to a state of confusion for the judges in the ‘social media age’.
The words ‘post,’ ‘friend,’ and ‘friending’ used in the Facebook context merely refer to individuals communicating with those listed on a social networking website and do not necessarily, imply any more significant relationship between those individuals. The mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend. A ‘friend’ on a social networking website is not necessarily a friend in the traditional sense to which he or she is attached by feelings of affection or personal regard. An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking. Some people have thousands of Facebook “friends.” Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends.’ Many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology suggestions rather than personal interactions. It is usually understood that traditional friendship involves a selection and communication process, notwithstanding one less formalized than the Facebook process. People traditionally select their friends by choosing to associate with them to the exclusion of others. And people traditionally communicate the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension. Not every relationship characterized as a friendship provides a basis for disqualification and there is no reason that Facebook friendships which regularly involve strangers should be singled out and subjected to a per se rule of disqualification. Judicious use of ESM can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges' use of ESM does not necessarily compromise their duties. This article highlight an issue which needs to be given more attention than it is being given at present. Not only must individual judicial officers participate in addressing the implications of the use of social media in personal and professional contexts, but given the constitutional context in which there are provincial and federal courts and tribunals, there are also many institutions and organizations which are or should be involved. The members of the Intellections Working Group agree that it would be in the public interest if recommendations were made that might assist in grappling with the complexities that the medium of digital communication has on the traditional expectations that judicial officers manifest independence and impartiality. The following recommendations are directed at judicial officers as individuals and to the institutions, organizations and associations which should be involved in addressing the implications of the use of social media by judicial officers. Along with these recommendations, we have included comments and suggestions relating to the institutional use of social media.
It can cause biasness, other than that points are valid.
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