(Dec. 30, 2019) On December 17, 2019, the Brazilian National Council of Justice (Conselho Nacional de Justiça, CNJ), a judicial agency responsible for the administrative and financial control of the judiciary and the supervision of judges, issued Resolution No. 305, which establishes the parameters for the use of social media (redes sociais) by members of the Judiciary.
The purpose of the Resolution is to make the exercise of freedom of expression compatible with the duties inherent in the office. (Resolution No. 305, art. 1.) The use of social media by magistrates must comply with the precepts of the National Magistrates’ Organizational Law (Lei Orgânica da Magistratura Nacional), the Code of Ethics of the National Magistrates (Código de Etica da Magistratura Nacional), the values established in the Bangalore Principles of Judicial Conduct, and the provisions of Resolution No. 305. (Art. 2.)
Social media is defined as all internet sites, digital platforms, and computer applications or mobile electronic devices that are geared to public and social interaction and that enable communication and the creation or sharing of messages, archives, or information of any kind. (Art. 2 (sole para.).) Article 3 provides recommendations that must be observed by magistrates when making use of social media, which include, but are not limited to, the adoption of a selective and judicious attitude (postura) when joining and presenting oneself (identificação) on social networks. The article emphasizes that “moderation, decorum, and respectful conduct” should guide all interactions on social media.
According to article 4, it is prohibited for magistrates using social media
I – to express an opinion on proceedings pending judgment by them or others, or a derogatory opinion on orders, votes or judgments of judicial bodies, except for criticism made in the case file and in technical works or in the exercise of the teaching profession;
II – to express an opinion that demonstrates engagement in political party activity or to express public support or criticism for a candidate, political leaders or political parties;
III – to issue or share an opinion that characterizes discriminatory or hate speech, especially those that reveal racism, LGBT-phobia, misogyny, anti-Semitism, religious or ideological intolerance, among other manifestations of prejudice concerning sexual orientation, physical condition, age, gender, social or cultural origin;
IV – to sponsor posts for self-promotion or commercial purposes;
V – to receive sponsorship to express opinions, [or] publicize or promote commercial services or products; and
VI – to associate [their] personal or professional image with the brand name of companies or commercial products.
The abovementioned prohibition of political party activity provided in article 4(II) does not encompass public or private expressions regarding government projects and programs, legislative processes, or other matters of public interest or of interest to the judiciary or the career of the judiciary, provided that the dignity of the judiciary is respected. (Art. (VI)(§ 1).) The dissemination of technical works authored by or with the participation of the magistrate, as well as of courses in which the magistrate acts as a teacher, are not part of the prohibitions provided for in items IV, V, and VI (listed above), provided that they do not involve the direct exploitation of economic activity for profit. (Art. (VI)(§ 2).)
The recommendations and prohibitions provided for in Resolution No. 305 do not apply to magistrates during the exercise of their mandates as legal representatives or directors of entities and class associations. Such magistrates can express themselves on social media, with a view to representing the interests of members, defending class interests, debating issues of national public interest, and defending the democratic state. (Art. 6.)
Judges who already have pages or profiles on social media must adapt them to the requirements of the Resolution within six months from the date of its publication. (Art. 10.)