Judges’ free speech on social media: Theory versus practice? A theoretical and empirical study of judges’ freedom of expression on social media platforms

This article analyses the multifaceted issue of judges’ freedom of expression on social media within the framework of the European Convention on Human Rights (ECHR). The engagement by judges in public discourse has resulted in the potential for conflicts to arise between their right to freedom of expression and their duty of discretion. This article examines the European Court of Human Rights (ECtHR) case law concerning Article 10 of the ECHR, which protects freedom of expression, and the distinctive constraints applicable to judges in light of their role. By means of a comprehensive analysis of recent ECtHR cases, including Danilet v Romania, the article demonstrates how the exercise of judicial freedom of expression is moderated by the context and subject matter of the expression, particularly when conveyed via social media. Furthermore, the article assesses the impact of these constraints on the judicial conduct of Belgian judges, with a particular focus on their use of social media and adherence to professional standards, particularly within labour courts and labour tribunals. The research findings indicate that, while existing guidelines provide a foundation, the application of these standards by judges is influenced more by personal and professional ethical considerations than by ECtHR jurisprudence. Furthermore, many judges are reluctant to accept a hierarchy-based approach to the protection enshrined in the right to freedom of expression. This article advocates for further research across a range of legal jurisdictions to refine guidelines on judges’ freedom of expression on social media. Ultimately, this should ensure a balance between democratic freedoms and judicial responsibilities in an evolving digital landscape.