Vanessa Reid examines regulatory oversight over social media for legal practitioners

Jon Holbrook – a public law barrister who was widely criticised and ultimately expelled from his Chambers last year for a tweet in which he referred to a schoolchild involved in a race discrimination case as a: “stroppy teenager of colour – has successfully appealed a £500 fine imposed for a different tweet in a decision handed down by the Bar Tribunal and Adjudication Service (BTAS) on 25th March 2022.

The tweet for which Mr Holbrook was initially fined stated: “Free speech is dying & Islamists & other Muslims are playing a central role. Who will lead the struggle to reinstate free speech as the foundation of all other freedoms?” An Independent Decision-making Panel (IDP) of the Bar Standards Board Independent Decision-making Body (IDB) found the tweet: “would not only cause offence but could promote hostility towards Muslims as a group” and was therefore a breach of professional rules.

The BTAS decision in Holbrook v BSB [2022] – which allowed the appeal of the IDP decision and set aside the fine – provides helpful new guidance regarding the scope of regulatory oversight of social media use by registered professionals and the approach to be taken to speech which is arguably political, even where such speech has clearly caused offence to members of the public or the profession. The decision concludes: “for the expression of a political belief to be such that it diminishes the trust of the public in the particular barrister or in the profession as a whole will require something more than the mere causing of offence.”

Taken together with other recent regulatory decisions relating to the use of social media by registered professionals, this case appears to signal an emerging regime in which the focus will be firmly on the mode of expression, rather than the opinion expressed. Derogatory or abusive language will be more likely to justify regulatory interference with political expression, but the relevant speech must be “seriously offensive” or “seriously discreditable” to warrant intervention by a regulator. Whether these principles will be applied consistently, and what balance will be struck between freedom of expression and conveying appropriate condemnation of offensive or harmful speech remains to be seen. At the very least, these cases may help establish some more transparent guidance which in turn will help registered professionals know how to govern their conduct on social media going forward. For now, the message seems to be: you can tweet an offensive opinion as long as you use polite language in doing so.

This article takes a closer look at the submissions and conclusions from the appeal decision – and compares this case to several related cases recently decided, in order to provide practitioners with an overview of the direction of travel in this quickly-developing area of professional regulation.

Holbrook v BSB [2022]: Barrister wins appeal over controversial tweet: original allegations and Twitter controversy

Two allegations were originally brought against Mr Holbrook by the Bar Standards Board (BSB):

Allegation 1: “On 17 January 2021 at 9:34am you posted a tweet which was designed to demean or insult a teenager, Ms A, and which may be considered distasteful or offensive by others.”

Allegation 2: “Between 25 March 2019 and 1 November 2020, you posted seventeen tweets which were designed to demean or insult others including Muslims, homosexuals and women, and which tweets may be considered distasteful or offensive by others.”

The context of the tweet referred to in Allegation 1 was that the Equality and Human Rights Commission posted a video about a Black schoolgirl who was repeatedly sent home from school because of her afro hairstyle. The girl and her family were supported by the Commission in bringing successful legal action against the school for racial discrimination. Mr Holbrook tweeted in reply to the video stating: “The Equality Act undermines school discipline by empowering the stroppy teenager of colour.”

The tweet drew significant public criticism and condemnation from other members of the profession. Mr Holbrook was formally expelled from his Chambers as a result of posting this tweet and subsequently repeatedly refusing to take it down, although he claimed to have resigned before being expelled. Brighton and Hove City Council also withdrew instructions from Mr Holbrook after becoming aware of his social media posts.

Allegation 2 related to 17 other tweets posted by Mr Holbrook during 2019 and 2020. Those tweets are not detailed in any publicly available documents, with the exception of a single tweet – "Tweet 14” – which was ultimately the subject of an administrative sanction and appeal.

IDP Decision: £500 Fine for Tweet which: “could promote hostility towards Muslims as a group”

The BSB IDP considered whether Mr Holbrook’s conduct in posting these tweets amounted to a breach of Core Duty 5 (CD5): “You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession” or Rule rC8: “You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity and independence.”

The IDP concluded the tweet described in Allegation 1 was not a breach of CD5 or rC8 as it was not: “seriously offensive or discreditable.” The IDP found that the language used in the tweet was: “ill-advised and may give rise to offence” but concluded Mr Holbrook was expressing his: “personal political opinion” on a piece of legislation rather than intending to demean or insult another.

The IDP made similar findings in respect of 16 of the 17 tweets described in Allegation 2, concluding Mr Holbrook had again expressed his: “personal political opinions” and his conduct in doing so did not amount to a breach of the professional rules.

However, the IDP found a breach of CD5 in respect of Tweet 14, which stated: “Free speech is dying & Islamists & other Muslims are playing a central role. Who will lead the struggle to reinstate free speech as the foundation of all other freedoms?”

Mr Holbrook’s tweet was a response to another tweet from October 2020, which called for the Charlie Hebdo magazine to be shut down following its controversial cartoons tied to the beheading of a French schoolteacher by an extremist in Paris. The IDP concluded:“the ordinary reader would understand [Mr Holbrook’s] tweet to mean that the Muslim community was to blame for curtailing free speech.” The IDP considered: “this would not only cause offence but could promote hostility towards Muslims as a group” and, as such, was likely to diminish the trust and confidence that the public placed in Mr Holbrook or the profession. The IDP therefore found a breach of CD5 (but not rC8) and imposed an administrative sanction in the form of a warning and a £500 fine.

Appeal decision: appeal allowed on limited grounds

Mr Holbrook appealed against the IDP’s decision on a number of grounds. The BTAS Appeal Panel (Panel) delivered its decision on 25 March 2022, allowing Mr Holbrook’s appeal on grounds 2 and 3(a) but rejecting the other grounds.

Grounds 2 and 3(a) were as follows:

2. The administrative sanction was unlawful under the common law and human rights law protecting freedom of speech;

3. The IDP’s conclusion that CD5 was breached because the relevant tweet: “would not only cause offence but could promote hostility towards Muslims as a Group”:

(a)  Sets the bar too low for bringing either Mr Holbrook or the profession as a whole into disrepute

The Panel considered grounds 2 and 3(a) together, as both concerned “the central issue in this case” – namely: “where the line is drawn between speech which breaches CD5 [likely to diminish the trust and confidence which the public places in you or in the profession] and speech which does not” [38].

Mr Holbrook: Strong protection should be afforded to political speech

Mr Holbrook emphasised the strong protections afforded to political speech and debate in the general case law on freedom of expression. He accepted the right to political speech is not: “entirely unfettered” and: “would lose its highly protected status where the manner of expression of the political view involved gratuitous personal abuse, derogatory racist or sexist language . . . or ‘grossly offensive and disparaging’ [social media] posts which were ‘targeted and misogynistic’” [42]. Mr Holbrook asserted no such: “gratuitous abusive language” was present in his tweet [42].

BSB: “Being a member of a regulated profession is a privilege which comes with scrutiny and responsibility”

The BSB argued it was: “wrong to draw from the extensive case law quoted by Mr Holbrook . . . a generalised immunity from professional discipline . . . in respect of expressions of political speech” and counselled against: “transposing broad statements as to the value of free speech between legal contexts” [31]-[32]. The BSB made the point that: “being a member of a regulated profession is a privilege which comes with scrutiny and responsibility” and accordingly there is a difference between regulated professionals and non-regulated members of society in terms of the scope to speak in terms which cause offence [32].

BSB Guidance considered

The Panel considered the BSB Handbook guidance in gC25 which states that a breach of CD5 is likely to be found where there is “seriously offensive or discreditable conduct towards third parties.” It also noted the October 2019 BSB Social Media Guidance which provides: “Comments designed to demean or insult are likely to diminish public trust and confidence in the profession (CD5) ... You should always take care to consider the content and tone of what you are posting or sharing. Comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others.”

Panel Decision: relevant speech must be “seriously offensive” or “seriously discreditable” to diminish the trust of the public

The Panel found, given the broad protections afforded to political speech and debate: “for the expression of a political belief to be such that it diminishes the trust of the public in the particular barrister or in the profession as a whole will require something more than the mere causing of offence. At the very least, the relevant speech would have to be ‘seriously offensive’ or ‘seriously discreditable’ as suggested in the BSB Guidance. Even in such cases there would have to be a close consideration of the facts to establish that the speech had gone beyond the wide latitude allowed for the expression of a political belief, particularly where the speech was delivered without any derogatory or abusive language and the objection was taken to the political belief or message being espoused, rather than the manner in which that belief or message was being delivered” [44].

The Panel concluded: “the case law on the circumstances in which freedom of expression can be interfered with dictate that the baseline for a breach of CD5 should be set higher than merely that a comment would simply offend” [47]. The Panel therefore concluded the IDP’s finding the tweet would cause offence fell short of establishing the type of conduct necessary for a breach of CD5 when the right to freedom of expression was engaged [47]. The Panel was also satisfied the IDP’s finding the tweet “could promote hostility” – expressed conditionally – fell short of the seriousness of offensive or discreditable conduct indicated by the case law and BSB guidance [48].

The appeal was therefore allowed on Grounds 2 and 3(a) and the administrative sanction and £500 fine were set aside.

Analysis

Mr Holbrook’s case confirms the broad protections given to political speech in other areas of law are to some extent also applicable to the regulatory context, although political statements made on social media may still amount to a breach of professional rules where they are expressed in a gratuitously abusive or derogatory way.

It is noteworthy the complaints about Mr Holbrook’s original tweet referring to a: “stroppy teenager of colour” were dismissed outright by the IDP and therefore did not form the subject of the appeal. This tweet was clearly considered racist, insulting, and demeaning to a specific third party by many members of the profession and the public, considering the amount of controversy the incident generated. The outcome here reaffirms regulators are most likely to focus on the specific language used in a social media post rather than the context of the statement, even where that statement targets a specific individual. However, registered professionals may experience other professional consequences as a result of controversial tweeting, as Mr Holbrook clearly has in this case.

Other recent regulatory decisions relating to the use of social media by registered professionals

Other recent regulatory decisions relating to the use of social media reaffirm the idea that speech which is vitriolic, derogatory, or abusive is the most likely to be considered to diminish the trust of the public in a professional or profession. Speech which offends but does not employ any insulting or inappropriate language is more likely to be found to be within the realm of acceptable conduct for a registered professional. However, the use of social media to intimidate or insult third parties, and/or sustained and repeated posting despite warnings, is likely to come in for closer scrutiny.

Diggins v BSB [2020] EWHC 467 (Admin) – A single tweet may amount to professional misconduct where the language used is: “racially charged” and: “derogatory”

At the extreme end of the spectrum of gratuitously derogatory language is the speech at issue in the case of Diggins v BSB [2020] EWHC 467 (Admin), in which a single tweet by a non-practising barrister made in his personal capacity was found to amount to professional misconduct where the language used in the tweet was: “racially charged and derogatory to women” [89]. This case gives a clear example of what language the BSB deems to be clearly beyond the pale.

The context of the tweet at issue was that in June 2017 a young Black female student at Cambridge University posted an Open Letter to the English Faculty exhorting the faculty to: “decolonize its readings lists and incorporate postcolonial thought alongside its existing curriculum.” Martin Diggins, a non-practising barrister, tweeted a reply which stated: “Read it. Now; refuse to perform cunnilingus on shrill negroids who will destroy an academic reputation it has taken aeons to build.”

A BSB Panel found the use of such language was likely to diminish the trust and confidence which the public placed in the profession; Mr Diggins’s conduct in using this language was “particularly grave”; and the posting of the tweet amounted to professional misconduct [20]. Mr Diggins appealed the decision and the £1,000 fine imposed.

The appeal was refused. Warby J held there was no: “bright line” to be drawn between the personal and the public in terms of the jurisdiction of professional regulators [72]. Ultimately the central issue was whether the language of the tweet was likely to undermine trust and confidence in Mr Diggins and/or the profession [72]. Walker J noted the focus of the Panel: “quite properly … was not so much on the message as the likely effect of the florid language employed to express that message” [90].

GMC v Harrop [2021] – Pro-Transgender GP suspended for: “inappropriate” and: “insulting” tweets

Another recent case involves Dr Adrian Harrop, a GP who was suspended for posting a number of tweets relating to his stance in favour of transgender rights. Ten of the tweets were alleged to be offensive, insulting, and/or inappropriate. He was also found to have attempted to: “intimidate” one of his critics by posting identifying personal information about them online.

Among the tweets identified in the allegations was a tweet ending with the phrase: “TERFS hate Trans” [33]. Another referred to one of the doctor’s critics as: “a venomous transphobic bigot” [39]. Another stated: “Cis people, on the whole, are just awful + there needs to be a massive state-sponsored programme of re-education” – although Dr Harrop emphatically stated in oral evidence this last tweet was a joke and could not reasonably be interpreted as anything else [41]-[42].

The Medical Practitioners Tribunal Service (MPTS) found that the tweets at issue were not “offensive” but were “inappropriate” – concluding none of the individual tweets would amount to serious misconduct, but Dr Harrop’s actions taken together when viewed “cumulatively and in their entirety” amounted to professional misconduct [26]. The Tribunal was particularly concerned with the fact the doctor had been warned about his online conduct on several occasions: “but chose to ignore these warnings and consciously continued with his course of behaviour” [25].

In determining Dr Harrop’s tweeting did amount to professional misconduct, the Tribunal made the following statement:

“The Tribunal considered that a registered doctor, who publicly identified themselves as such online, has obligations to fulfil in order to maintain public confidence and promote professional standards. Such obligations do not restrict a registrant from stating their personal views on issues or challenging the views of others—even robustly, in public or otherwise. However, as an identifiable registered doctor, it is important that caution is exercised, particularly in the manner, language and tone that is used. When a registered practitioner strays into inappropriate, insulting and—as in one admitted allegation in this case—intimidating behaviour, that falls outside the qualified right to free speech and risks bringing the profession into disrepute” [23].

Dr Harrop was suspended from practice for one month and has not appealed the decision.

Joanna Toch – BSB dismisses complaints against family barrister for royal baby name tweets

A final recent case involves a family law barrister, Joanna Toch, who was cleared by the BSB over two tweets she made in June 2021 about the name given to Prince Harry and Meghan Markle’s baby, Lilibet Diana.

Shortly after the baby’s name was made public, columnist Julie Burchill tweeted: “They could have called it Georgina Floydina!” Ms Toch, in an apparent reference to Ms Markle’s mother, replied: “No Doria? Don’t black names matter?” Ms Burchilll replied she was: “hoping for Doria Oprah” and Ms Toch responded: “Doprah?” As a result of public criticism of these tweets Ms Toch was briefly suspended from the company she had helped found in 2017, but was reinstated a short time later.

The BSB wrote to Ms Toch in March 2022 stating that it had dismissed over 80 complaints against her in relation to the tweets. A BSB IDP noted some people found the tweets offensive, but ultimately concluded the posts did not diminish public confidence in the profession or undermine Ms Toch’s integrity or independence.

Conclusion

These recent cases make clear the use of social media by registered professionals acting in their personal capacity will continue to come under scrutiny by regulators. Traditional free speech protections are still applicable in this context – and Mr Holbrook’s appeal makes clear speech which may be regarded as political will be afforded a higher level of deference – but will be balanced against the fact that being a member of a regulated profession is: “a privilege which comes with scrutiny and responsibility.” The mere causing of offence to members of the public or the profession will not generally be considered a breach of professional obligations, but registered professionals will need to carefully consider their use of language when expressing controversial opinions. Any use of social media which gratuitously insults, intimidates, or demeans third parties is likely to invite closer scrutiny, as is sustained or repeated conduct in the face of warnings. We will undoubtedly see more guidance continue to emerge in this area as an increasing number of complaints involving social media posts continue to make their way through the regulatory process.

Vanessa Reid is a barrister at Mountford Chambers specialising in criminal defence and regulatory law: mountfordchambers.com/profile/vanessa-reid and @vanessajreid. This piece has also been “guest featured” by The Secret Barrister: thesecretbarrister.com (@BarristerSecret).

Vanessa Reid
Barrister
Mountford Chambers