Finding balance between judicial transparency and the freedom of expression and judges' right to privacy: French experience 

Natalie Ficero is Professor at the University Cote d’Azur specializing on law of justice, civil procedure and mediation. She is member of the French High Council for the Judiciary and works as an independent expert for the Council of Europe.

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Based on the freedom of expression and the right to information, social networks, open databases of court decisions and their algorithmic processing allow to find a lot of personal data of judges. However, French law sets limits to the publicity of judgments, in order to guarantee the security and privacy of judges. "When its disclosure is likely to undermine the security or privacy of these persons or their entourage, any element that could identify the parties, third parties, judges and members of the court registry is also concealed." [1]

French law considers that the limits also result from the rules of ethics for magistrates. [2] In particular, the code of ethics imposes on magistrates an obligation of prudence in the use of social networks (even if they use a pseudonym), which makes it possible to limit the information on their personal life, to preserve the image of justice and the image of impartiality. The High Council for the Judiciary has already issued disciplinary sanctions against magistrates who used social networks in an inappropriate manner. Also, the French Ministry of Justice published an information sheet indicating good practices on the subject.

 At times, the information available on judges can lead to judges being profiled, including by using machine learning applications, in order to predict their judgments. This can raise ethical dilemmas from the standpoint of the right to a fair trial, impartiality, fairness and judicial integrity, among other issues. French law explicitly prohibits the "profiling" of judges. "The identity data of judges and members of the registry may not be reused for the purpose or effect of evaluating, analyzing, comparing or predicting their actual or supposed professional practices."[3] Both penal and administrative measures and sanctions are available. [4]

Nevertheless, the principle of transparency of justice remains and the parties must have access to the identity of the judge, unless the judge can justify a risk of infringement of their security and privacy. Moreover, it does not seem conceivable to prohibit litigants from "googling" the judge.

There exist some good practices and ideas on how the public knowledge of judge-related data can be balanced to strengthen public confidence in the judicial institution and judicial integrity, while at the same time protecting the privacy of judges and eliminating any potential integrity-related risks. In particular, the following could be considered:

• To provide for in the law a principle of publicity of the identity of judges in judgments and exceptions justified by a risk to the privacy or safety of judges;
• To prohibit the profiling of judges for the purpose of "predicting" their judgment and to sanction the violation of this prohibition;
• To allow audio-visual recording of hearings and frame it in the law (authorization of the judge and the parties) and prohibit free recording by the parties, lawyers and third parties;
• To modernize codes of judicial ethics to reaffirm the freedom of expression of judges but also to define the contours of the use of social networks and other media;
• To provide (e.g. the Ministry of Justice) guidelines on the proper use of general (e.g. Twitter) and professional (e.g. LinkedIn) social networks; and
• To provide (e.g. judicial schools) effective training for judges on the risks of using social networks.