Social media is a powerful tool for charities, and can be used to great effect in raising awareness of their impact, activities and fundraising initiatives. However, it is somewhat of a double-edged sword, and the use of social media by staff and volunteers can create difficulties.
The Charity Commission has sought to provide guidance for charities on this difficult topic, and is currently consulting on the draft guidance. In this context, we explore the key issues for charities when adopting social media policies, with a particular focus on the need for charities to balance the protection of their reputation with the personal freedoms of those connected to the charity.
Whilst the use of social media offers charities an opportunity to raise awareness and engage directly with supporters, the Charity Commission appears to be concerned that some charities may not be equipped to appropriately manage and monitor their social media use, and the use of the charity's brand more widely on social media. Posting on social media has a wide reach and any detrimental comments made could have a long lasting negative impact on a charity's reputation.
The Charity Commission has produced draft social media guidance and is inviting charities (including trustees or any other representative bodies) and the public to comment in a consultation. Jennifer Marley and Amy Bradburne are part of the Charity Law Association working party for this purpose and have fed into the Charity Law Association's feedback on the draft guidance. The consultation closes at 5pm on 14 March 2023 and the final guidance is due to be published in summer 2023.
The Commission's draft guidance is split into six categories:
- Set a social media policy
- Managing potential risks in posting social media content
- Engaging on controversial topics
- Campaigning or political activity on social media
- Fundraising on social media
- Staying safe online
Its content seeks to inform trustees as to the practical application of their legal duties in a modern technological world. We set out some of the key areas for charities to consider further below.
Managing potential risks in posting social media content
Due to the informal nature of social media, it is common for individuals to post information online quickly without full consideration of its potential repercussions. Individuals using social media on behalf of a charity need clear guidance on what should and should not be posted. Relevant legislation must also be considered, including data protection, intellectual property and employment laws.
The Charity Commission's guidance on managing potential risks is split into three categories:
- Content shared by the charity
- Content shared by individuals connected to the charity on their personal social media accounts
- Information shared by third parties on the charity's social media account
The Commission expects charities to be aware of each of these areas of risk and take action where inappropriate to protect against reputational damage or loss to the charity.
Opinions of individuals connected to a charity
Where an individual connected to a charity posts comments or opinions on their own social media account that the charity considers inappropriate, this raises the issue of whether a charity should have the power to restrict the information an individual shares on their own accounts. Criticisms of such concepts have already been raised within the sector, and critics are pointing to the issue of whether charities can restrict the personal freedoms of individuals.
Attempts to restrict how personal accounts are used will no doubt impact personal freedoms, namely the right to freedom of expression (Article 10 Human Rights Act 1998) which includes the "freedom to hold opinions and to receive and impart information and ideas". However, this right also acknowledges that the "exercise of these freedoms...may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society", which includes "for the protection of the reputation or rights of others". In this scenario, the question is whether personal freedoms should be restricted in order to protect the reputation of the charity with which those individuals are connected.
In the modern world, it is very difficult to strike the right balance between individual freedom of expression and protecting a charity's reputation. Opinions, whether controversial or otherwise, can spread across social media with great speed and ease. In these circumstances it can be difficult for charities to keep track of events and take action (if appropriate) to mitigate any associated risks.
Lessons from other areas?
A similar need for balance between the right to freedom of expression and protecting a charity's reputation was seen in a recent employment case: Ms P Jones v Scottish Federation of Housing Associations. Here, an employee was dismissed by the charity after seeking permission to stand as a Labour MP candidate in a General Election. The request was refused due to the charity's "political neutrality" policy which included the rule that staff could become members of political parties, but were not allowed to hold any political "formal role".
At the preliminary hearing in the Employment Tribunal (Scotland), the judge confirmed that the employee may bring a claim for automatic unfair dismissal by reason of political opinions or affiliations under section 108(4) Employment Rights Act 1996. They were unable to claim ordinary unfair dismissal under sections 94 and 98 Employment Rights Act 1996, as they did not have the necessary two years' service. This case was later complicated, as the charity successfully appealed the preliminary hearing decision in the Employment Appeal Tribunal, meaning the employee was not able to bring an automatic unfair dismissal claim after all.
This case illustrates the difficult balancing exercise between protecting a charity's reputation and protecting the personal freedoms of individuals. We do not know how this case would have been concluded had the employee been employed for two years, as they could then have brought a more straightforward unfair dismissal claim, arguing that their dismissal was unfair on the basis of them holding a reasonable political opinion. In any case, this is a useful reminder that charities should take great care in adopting and enforcing sensitive policies, and making the decision to dismiss for such reason.
Engaging on controversial topics
The Charity Commission's guidance acknowledges that a charity may engage with controversial topics on social media as a way of achieving its purpose in the best interests of the charity. However, charities also need to consider the risks involved in engaging in these activities and how to mitigate against those risks.
Campaigning or political activity on social media
The Charity Commission has helpfully published a 5 minute guide containing rules for charities who wish to support or oppose government policy or legislative changes. For further reading, Amy Bradburne discusses the commentary around this topic in a recent article.
Fundraising on social media
Presence on social media can of course generate potential for increased fundraising opportunities for charities. The Charity Commission reminds charities that the Code of Fundraising Practice applies when using social media for fundraising purposes, and that any communication must be "open, honest and respectful".
Conclusion
The world of social media undoubtedly offers opportunities for charities to reach people and promote causes in new and effective ways. However, charities need to take care to protect their reputation and encourage general principles of appropriate online behaviour. This all needs to be balanced with an individual's right to freedom of expression.
The Birketts View
Many charities are still feeling their way when it comes to social media and how best to use it to the benefit of the charity. We encourage anyone who has experience or views about how best to help charities navigate this difficult area to contribute to the Charity Commission's public consultation on its draft guidance, so that the final guidance is as clear and helpful as possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.