Draft Guidance from the Charity Commission on the Use By Charities of Social Media
Earlier this year, the Charity Commission (the Commission) published draft guidance for charities on the use of social media (Draft Guidance). The Commission is now considering responses from the sector.
The consultation ended at 5pm on 14 March 2023, with final guidance expected to be published in the summer along with an analysis of responses. In this article we consider the Draft Guidance, some potential issues as well as areas for further thought.
Social Media - A Powerful Tool with Inherent Risks
As the opening paragraph of the Draft Guidance rightly states, "social media can be a powerful communication tool for charities, to raise awareness or better engage beneficiaries". However, the fast-paced and somewhat permanent nature of posts on social media can create numerous risks and difficulties for charities. The Draft Guidance is partly a response to a rise in the number of complaints received by the Commission about issues connected to social media, but also a response to the increasing relevance of social media to the work of charities.
Paul Latham, Director of Communications and Policy at the Charity Commission, has said:
“We know from our work that some trustees have limited oversight of their charities’ use of social media and can have limited understanding or confidence when it comes to digital channels. We appreciate that this can be tricky territory, and one where personal and professional lives and opinions can overlap, which is why we are consulting widely to make sure we get this right.”
The Commission does not intend to create new responsibilities for trustees through its guidance on social media, but aims to clarify existing duties and develop understanding of appropriate use of social media and the risks it can bring to a charity, so that trustees can act with confidence. The Commission encourages charities to adopt a suitable social media policy outlining their approach. When completing an annual return, all registered charities are now required to confirm to the Commission whether they have certain policies and procedures in place, including for social media.
Common Issues Faced Regarding Social Media
VWV act for a multitude of charities and regularly advise on issues arising from or connected to social media. Such issues include defamation matters, IP infringement, data incidents, online bullying, harassment and internet trolling. In addition to our reputation management work, we also have expertise in advising charity clients on governance issues, and are often asked to advise on matters involving disputes and Charity Commission Inquiries which relate to social media.
A failure to control social media use by charity trustees can be seen by the Commission as evidence of mismanagement or misconduct, so the importance of properly managing and monitoring social media use cannot be understated. Similarly, the importance of seeking legal advice where issues arise should not be overlooked as these are complex, specialist areas of law that trustees cannot generally be expected to have a detailed understanding of.
Areas for Further Thought
Whilst it is helpful that the issues commonly associated with social media are being addressed by the Commission, there appears to be various aspects of the Draft Guidance which could benefit from further consideration and detail. Some of these include:
Whilst it is helpful that the issues commonly associated with social media are being addressed by the Commission, there appears to be various aspects of the Draft Guidance which could benefit from further consideration and detail. Some of these include:
Remit
The Draft Guidance states that charities should ensure social media is used "only to help you achieve your charity's purpose (what your charity was set up to do) and in a way that is in your charity's best interests". However, in reality this is not how many charities use social media on a day to day basis and followers of a charity's social media accounts would not necessarily expect or want to see posts by the charity that are only about the charity's objects, as users of social media enjoy broader, more varied content.
It is unclear how narrowly this requirement outlined by the Commission should be applied in practice, but it may be more helpful for the Commission to instead say the approach should be that nothing posted on social media should be contrary to a charity's purpose / objects, rather than saying all posts should be in furtherance of a charity's purposes / objects.
Proportionality
The areas of the Draft Guidance on identifying and managing risk are very widely drafted and monitoring all content could be hugely burdensome for charitable organisations of all sizes. Whilst the Charity Commission is right that it would be good practice for many charities to have a social media policy, the Draft Guidance does not make reference to the fact that the level of trustee oversight expected in respect of a charity's social media will differ depending on a range of factors, such as:
- the size and profile of the charity
- its audience on social media
- how regularly social media is used by the charity
- the things a charity uses social media for
The Draft Guidance does not make clear that trustees should be expected to take a proportionate approach based on factors such as those listed. Whilst it may be appropriate for a charity to have a policy on social media, that should depend on the size, nature and activities of the charity (rather than simply requiring all charities to have a social media policy).
Personal social media posts
The Draft Guidance warns that posts by someone working or volunteering for a charity could be seen as reflective of the views of the charity they are connected to. Charities are therefore urged to set rules on the use of personal accounts through social media / HR policies, and to have plans in place for responding to any unwanted negative attention. This is of course potentially problematic in the context of freedom of speech and there are concerns over potential encroachment into the private lives of trustees, employees and volunteers. The position on this front is heavily dependent on context and circumstances and this aspect of the guidance needs very careful consideration.
Crisis management
The Draft Guidance does not make much reference to planning for and managing a crisis, but it would be useful to remind trustees of the benefit of putting a clear crisis management process in place, which contains specific details on who is responsible for what and when, if a crisis arises - particularly given that a crisis related to social media can often occur and escalate within a matter of minutes, so being prepared is key. As part of this preparation, those involved in running, working and volunteering for a charity should all have an awareness of the types of content that should be escalated and how this should be done.
Specificity and nuance
The Draft Guidance addresses various issues in a fairly high level way and as a result is arguably not sufficiently specific or nuanced (but could be seen by some charities as definitive). For example, there are references to 'harmful' and 'problematic' content, but there is no clear guidance on what the meaning of these terms is. The subjectivity of these terms means the standard or measure to which they should be judged against is unclear.
The Draft Guidance could therefore benefit from examples to help illustrate to trustees what is meant and intended by the Commission. This could help reduce worry and uncertainty amongst trustees who may now feel nervous about their charity's use of social media in light of the Draft Guidance. However, use of social media should not be discouraged given the benefits it can bring through engagement of supporters, fundraising and promoting awareness of important causes and valuable charitable work.
Response to the Draft Guidance
Rhiannon Lewis (Associate) and Ben Holt (Partner) in our dispute resolution team specialise in reputation management and regularly advise charities on issues connected with social media and problematic online posts.
Rhiannon is part of the Charity Law Association's Working Party in relation to the Draft Guidance, who together are preparing a draft response to the Commission to provide feedback from a range of specialisms from across the sector.
If you or your charity are concerned about the Draft Guidance please speak to your usual contact at VWV.
Get in Touch
To discuss the Draft Guidance or any specific issue relating to social media / reputation management, please contact Rhiannon Lewis or Ben Holt in our Dispute Resolution team, or complete the form below.