Social media – when “fair comment” becomes objectionable
Social media will be at the top of most lists as one of the technologies that has changed the world and the ways in which we communicate. Local authorities, like other organisations, increasingly make the most of social media to engage with their local communities on a range of topics, hoping to break down barriers and reach a wider audience, providing better transparency and understanding about how decisions are reached and policies made, and making it easier for individuals, businesses and groups to participate in and influence local issues.
Unfortunately, social media can bring negative as well as positive impacts and local authorities increasingly find themselves monitoring social media sites and websites, looking for potentially damaging comments and infringements of intellectual property rights, so that, where appropriate, action can be taken in response. So fast is the world of social media, that responding to negative statements and correcting false or misleading ones needs to happen as soon as the comments appear if reputational damage is to be avoided and before there is any significant and long-lasting impact.
Reputationally damaging comments on social media
At one time or another, most local authorities will have found themselves on the wrong end of false, negative and potentially damaging comments that have been posted on social media sites or unaffiliated third-party blogs. It is easy, even for the less technically competent, to post false information, insults, make allegations of criminal behaviour and sometimes much, much worse. Using social media to say things that you would not say to someone’s face, is an easy method of attack and one which can inflict considerable damage, all with the click of a mouse. Posting on social media ensures a wide audience, especially where that audience can share, re-post and add to the content that is already there. Information on social media can spread quicker than wildfire, can take on a life of its own and can be very destructive. Once the hares have started running, it can be very difficult to stop them.
The options for a local authority in dealing with offensive comments about it as a public body are limited. Sometimes it can more effective to do nothing, sit tight and wait for the next big story to emerge, rather than dignifying the comments by responding to them, especially as threats of legal action may be more likely to stoke the fire than put it out. Some social media content though will demand action by the local authority and as to what this should be, will depend on what sort of content it is.
Increasingly, councillors and employees are becoming the targets of online malicious communications, such as false and/or disparaging comments, insults, hostility and/or allegations of fraud or corruption. Where false information within a comment needs to be corrected, a prompt response using the right tone can often be more powerful than the initial material.
However, where the objectionable content relates to a councillor or an employee, there may be an expectation by those individuals that the local authority will act. There are limitations, however, on what a local authority is able to do. Where it is able to act, there is a need for a clear public interest justification, and a decision made at an appropriate level within the local authority according to its standing orders, formally documented and published. There are a number of factors to consider when determining public interest, including the impact of bringing a claim, the time it might take to achieve a resolution and the cost. In these times of austerity, the public interest justification bar will be set at an extremely high level.
There are a number of potential remedies appropriate for those malicious communications that cannot simply be ignored or dealt with by way of a reply comment. For example, a letter to the person who has posted the comment, explaining why their behaviour/language is unacceptable, the impact it has had, an explanation about why it is not appropriate to raise such concerns on social media and information about where to direct any future concerns can sometimes be enough. Depending on the nature of the post, it might be appropriate to refer the individual to the Corporate Complaints Policy, the Code of Conduct or perhaps even offer a meeting. A request that the offending post be removed and not repeated in future should also be included.
In the more serious cases, it may be appropriate to include in the letter a threat to contact the social media provider and to outline the consequence that this could result in their account being suspended or deleted. In addition, an explanation that comments online can give rise to a number of legal remedies, accompanied by a threat to pursue all or any of these if the content is not removed immediately, might be sufficiently of concern for the post to be removed voluntarily.
Where none of the above has any effect, formal action, or at least the threat of it, may be necessary.
It is not possible to defame a local authority (Derbyshire County Council v Times Newspapers  UKHL 6), it being a matter of public interest that a local authority should be exposed to uninhibited public criticism. To permit action to restrict comment would fetter freedom of speech and accountability. However, where the objectionable content relates to a councillor or an employee, defamation may apply. The High Court in McLaughlin and others v London Borough of Lambeth and another  EWHC 2726 (QB) clarified that nothing prevents individuals from bringing a defamation claim when their conduct in carrying out the public body’s business has been impugned.
To bring an action for defamation it has to be shown that the online content was first published within the previous 12 months, that it lowers the subject in the estimation of right-thinking members of society, that it has caused or is likely to cause serious harm to the subject, is not the truth or honest opinion, nor does it benefit from another of the established defences. Quite a high threshold. As an alternative to defamation, where there has been financial loss, the tort of malicious falsehood provides a similar but separate cause of action.
The question then arises as to whether a local authority should, or is indeed lawfully able to, bring a claim on behalf of its employees or its councillors, or otherwise contribute towards potential damages and costs through the giving of an indemnity or the provision of insurance.
The Local Authorities (Indemnities for Members and Officers (England) Order 2004 (SI 2004/3082), and the equivalent Local Authorities (Indemnities for Members and Officers (Wales) Order 2006 (SI 2006/249) provide that a local authority can only indemnify against damages and costs in defamation proceedings in which the individual is a defendant, in exceptional circumstances and where there is a clear public interest justification. There is some uncertainty however, as to whether a local authority can still, in exceptional circumstances, pay the costs of bringing a claim for defamation by relying on section 111 of the Local Government Act 1972. The relevant case law authority for doing so is R (Comninos) v Bedford Borough Council  EWHC 121 (Admin) although this precedes the coming into force of both the English and Welsh Orders.
Comninos was a judicial review challenge by the district auditor of the local authority’s decision to fund defamation proceedings and indemnify officers in respect of any liability for costs. The district auditor’s challenge of the decision failed as the court held that the local authority had the power under section 111 of the Local Government Act 1972 to indemnify the officers. The court rejected the argument that a distinction should be made between granting indemnities to defend litigation compared with initiating proceedings. Instead, it stated that it was for the local authority to ensure that it complied with the principles of public law when determining such questions, that the local authority may more easily defend a challenge to the lawfulness of providing an indemnity where the officer had been sued, than where the officer was bringing the proceedings, but that all cases were fact specific.
In Wales, and by analogy England, the law in Comninos appears to still hold good notwithstanding the implementation of the 2004 and 2006 Orders. Caution is however required. Where exceptional circumstances are considered to exist, it is crucial that any report prepared for decision contains all the relevant information and considerations, and that the nature of the exceptional circumstances in play are clearly, adequately and precisely defined. Further, that relevant parties including the auditor, are fully consulted in advance and comments included in the report. As exceptional circumstances will arise only in the rarest of cases, an indemnity is unlikely to be an option in most scenarios where comments posted on social media are considered to be defamatory.
In light of the many issues arising from a consideration of defamation, harassment under the Protection of Harassment Act 1997 might perhaps appear to be a more straightforward route for an employee or councillor where it can be shown that the posting of the information online has caused distress or alarm.
Due to harassment being both criminal and civil, a victim of harassment can choose what the best route will be. For example, an individual may consider a civil action more appropriate where the evidence may not meet that required for a criminal prosecution, beyond reasonable doubt. In addition, a more urgent resolution is potentially more likely to be achieved via a civil claim.
The availability of a civil claim for harassment is provided for in section 3 of the Protection from Harassment Act 1997. This sets out that harassing conduct may be the subject of a civil action for both an injunction to restrain the individual and for damages to compensate for anxiety and financial loss. The claimant in civil proceedings can be either a victim of the harassing conduct or, in the case of section 1(1A), the third party upon whose behaviour the harassment is intended to impact.
For a criminal charge to be brought, it is necessary to establish either that there has either been a course of conduct which, in the eyes of a reasonable person, amounts to harassment, or, two or more individuals have been harassed with the intention of persuading a person to do or not do something. Online acts such as trolling or cyber-bullying may well fit into this category. Proceedings need to be commenced promptly i.e. within 6 months, as the offence of harassment, is a summary one.
If considering a prosecution, the Criminal Prosecution Service Guidelines on prosecuting cases involving social media communications would need to be considered. A prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society i.e. “fair comment”. In line with the freedom of speech principles in Article 10 of the Human Rights Act 1998, no prosecution should be brought unless it can be shown on its own facts and merits to be both necessary and proportionate.
Whilst a complaint can be made to the police, a victim of online harassment can in theory commence private prosecution proceedings as permitted by section 6(1) of the Prosecution of Offences Act 1985.
Worth noting is section 1 of the Malicious Communications Act 1988 as an alternative to harassment. This provision creates an offence where communication has been sent that conveys a threat, a grossly offensive or indecent message, or false information if the intention of the sender is to cause distress or anxiety to the reader or recipient.
An offence under the Malicious Communications Act 1988 is listed by the Crown Prosecution Service as one of the offences most likely to be committed by the sending of communications via social media. As with harassment, an offence under the Malicious Communications Act 1988 is a summary one.
In addition to harassment and malicious communications, section 127 of the Communications Act 2003, makes it an offence to send a message that is grossly offensive or of an indecent, obscene or menacing character over a public electronic communications network. An ‘electronic communications network’ is defined in section 32 of the Communications Act 2003.
In Chambers v DPP  EWHC 2157 it was confirmed that a Twitter message is a message sent via a “public electronic communications network” for the purposes of the Communications Act 2003. This is because it is accessible to all those who use the internet. The same will apply to most social media posts or messages.
Dealing with the anonymous blogger
The potential remedies above are all and well and good if you know the identity of the individual or individuals responsible for the content of the communication, but if someone has created it anonymously or masked their identity, taking action against the perpetrator is going to be tricky. Fortunately, all is not lost, as long as the party providing the internet platform that hosts the social media site, or the owner of the social media website itself can be identified. Not unsurprisingly, a number of defences exist to protect these parties, on the basis that they may be ignorant of the objectionable content.
In some circumstances, the platform provider or website owner will have a responsibility to remove unlawful content and this might be the best way to proceed to start with, especially as most social media platforms will have a policy prohibiting the use of their service to commit any infringement of third party rights, harassment, impersonation, or defamation. Most will provide avenues to report objectionable content for their review and action e.g. suspension of the account or a take-down of the content. In most instances, this process is designed to be fairly straight forward and simply requires completing an online form.
Despite a large proportion of social media platforms being owned and operated by companies located in the United States and governed by United States law, Twitter, Microsoft, Facebook and YouTube agreed a code of conduct with the European Commission in 2016 setting out how they will respond to unlawful hate speech posted by users, including reviewing the majority of valid notifications within 24 hours, and to remove or disable access to the content in question where necessary. It’s not yet clear whether the UK will continue to benefit from the code of conduct post Brexit.
A further option to bear in mind, at least for now, the uncertainty of Brexit notwithstanding, is the EU entitlement to have certain content removed from Google search results, following the ECJ ruling in Google Spain SL v Agencia Española de Protección de Datos (AEPD) and another (Case C-131/12). While making such a request does not result in objectionable content disappearing from the internet completely, it can help minimise the damage caused, as a general internet search would not reveal it.
Reforming the law on social media abuse
In November 2018, the Law Commission proposed reforms to the law to protect victims from online and social media-based abuse. The Commission had been asked to assess whether the current criminal law achieved parity of treatment between online and offline offending and concluded that abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending, but that there was considerable scope for reform.
The Commission has proposed:
- Reform and consolidation of existing criminal laws dealing with offensive and abusive communications online
- A specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment
- A review of how effectively the criminal law protects personal privacy online
The Department for Digital, Culture, Media and Sport (DCMS) is analysing the Law Commission’s Scoping Report and will decide on the next steps, including what further work the Law Commission can do to produce recommendations for how the criminal law can be improved to tackle online abuse.
Depending on the outcome of this review, local authorities may need to reconsider in the future how malicious communications are addressed and reflect any changes in the law within their social media policies.
Social Media Policy
All councillors and employees should be aware of the local authority’s published social media policy and what to do when objectionable comment is identified.
Ideally, a social media policy should contain:
- a general statement regarding the use of social media by councillors, employees, contractors, temporary workers and volunteers
- rules about accessing social media sites at work, when and for how long
- information about any monitoring by the local authority and how any information can be used, for example, in disciplinary or dismissal proceedings
- guidelines about who is authorised to use social media sites in a business context, particularly with reference to the protection of the local authority’s confidential information and any limitations. To ensure corporate oversight and clear and consistent responses, it helps to have a well-trained designated officer or team in place, with an agreed process for approval and final sign off of all comments
- a prohibition on the disclosure of derogatory or discriminatory comments about the authority, its colleagues or clients, or comments that disclose confidential and/or sensitive business information
- a reminder that councillors, employees, contractors, temporary workers and volunteers should not misuse the personal data of others
- a requirement that employees insert a disclaimer into any personal blog or social media account stating that any views expressed are those of the employee and are not representative of the local authority’s views
- a warning that breach of the social media policy could lead to disciplinary action, up to and including dismissal.
The reality is that councillors, senior officers and to a certain extent, public-facing employees, have had to develop a thick skin when it comes to their public duties and the posting of content about them on social media platforms. That should not mean however that offensive or malicious communications should be ignored. Whilst there are limitations as to what it can do, a local authority may want and indeed, be obligated under health and safety legislation, to provide support to the victims by, for example, helping to get the content removed, arranging counselling for employees, and/or agreeing time off so that they can seek independent advice about options they may wish to pursue themselves.
It is important that councillors, employees, contractors, temporary workers and volunteers never retaliate or personally engage with cyberbullying incidents as doing so may make the situation worse. Instead, they should be encouraged to report the incident straight away to the relevant person e.g. Monitoring Officer, line manager or other officer as set out in the social media policy. Texts or emails received that contain offensive comments should not be deleted, screen prints of social media posts should be taken and a record made of the time, date and the address of the site on which the comment has been posted.
Many local authorities have community police officers on-site and it may be appropriate to contact them or the local police team where it appears one or more laws have been broken and especially where there have been death threats or the offensive comment is racially motivated.