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2.7 Use of Social Media Sites by Staff

NOTE

The use of social media in a social care and safeguarding environment is a developing area. Recent cases and reviews have discussed the use of social media in social work practice. There is, however, currently no specific government guidance on the issue. This chapter is designed to highlight some of the issues to be considered, with links to additional information. It is not intended to provide any legal advice, and legal advice must be sought as appropriate. Local Authorities and Courts may have local protocols in place on the use of social media/service of documents.

This chapter will continue to be updated as the body of case-law develops.

RELATED CHAPTERS

Photographing Children Procedure

Data Protection, Information Sharing and Confidentiality Policy

Policy for the Secure Handling of Protected Information

This chapter was added to the procedures manual in July 2019.


Contents

  1. Introduction
  2. Issues
  3. Use of Social Media by Staff in a Personal Capacity
  4. Use of Social Media by Staff in a Professional Capacity

    Further Information


1. Introduction

Developments in online facilities such as social media sites are fast-changing. This can impact on many aspects of daily life, including in a social care and safeguarding environment. It is important that professionals keep up to date with and harness useful technology, whilst ensuring that this is done in a safe and appropriate manner.

Social media can be a useful tool. It can be used by professionals to develop skills and knowledge, and to network with others nationally and internationally. It offers new ways of working. For example:

  • Checking the social media accounts of missing children/young people, where they are public, as part of efforts to trace them;
  • Tracing/serving birth parents during court proceedings;
  • As part of assessments, to ascertain the veracity of information provided by parents and others.

Recent court cases and case reviews have advocated the use of social media checks during assessments and court proceedings. However, this is a developing area and caution must be exercised. At this stage it is advisable that these checks are undertaken by police and/or social care as part of criminal investigations and/or safeguarding assessments.


2. Issues

The increasing use of social media sites brings with it additional considerations. These include:

  • Confidentiality and consent of service users – see also Data Protection, Information Sharing and Confidentiality Policy;
  • The need to process personal data in accordance with data protection principles;
  • Professionals’ own right to privacy and private life;
  • The need for caution and corroboration – social media accounts can be infiltrated/faked. Service-users may have more than one online persona;
  • Appropriate arrangements need to be made for setting up dedicated social media accounts. It is not appropriate to use professionals’ personal accounts or ‘fake’ accounts. Employers may wish to set up corporate private profiles with access limited to a small number of staff;
  • Depending on the circumstances, the viewing of service-users’ social media accounts may constitute overt or covert surveillance requiring appropriate authorisation.

2.1 Data Protection

Information gleaned from searches of social media sites will constitute ‘personal data’ which must be processed in accordance with data processing principles. It must be:

  • Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes. Evidence of the justification for the search must be documented on case files as part of an audit trail;
  • Relevant and limited to what is necessary for those purposes;
  • Kept for no longer than is necessary for those purposes;
  • Accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that inaccurate personal data are erased or rectified without delay;
  • Processed lawfully, fairly and in a transparent manner;
  • Processed in a secure manner, which includes protection against unauthorised or unlawful processing and against accidental loss, destruction or damage.

2.2 Consent

It is good practice, where enquiries are likely to include searches of social media sites, to make service-users generally aware of this fact by including this in the information which is given to them at the commencement of the process, for example at the commencement of the Assessment.

In specific cases, social media searches, as with other forms of information-gathering for Assessment purposes, should generally take place with the consent of the subject, unless there are valid reasons to the contrary. There may be an ‘overriding public interest’ in obtaining and sharing information without explicit consent. For more information, see Data Protection, Information Sharing and Confidentiality Policy. This will depend on the circumstances of each case.

2.3 Covert/Overt Surveillance and the Regulation of Investigatory Powers Act 2000

Viewing a service-user’s social media content without their specific consent is not necessarily, of itself, unlawful.

However, consideration must be given, in all cases, as to whether viewing the sites constitutes ‘directed surveillance’ under the Regulation of Investigatory Powers Act 2000 (‘RIPA’) and so requires authorisation under that Act. This is a complex area. The existing legislative provisions, the stated views of the Chief Surveillance Commissioner and the current attitudes of the courts are not necessarily easy to reconcile, and this is an area which will, no doubt, continue to develop by way of case-law.

In a letter to local authorities in April 2017, the Chief Surveillance Commissioner concedes that:

These are complex legislative provisions, and without appropriate training and awareness council officers cannot be expected to appreciate and apply them. They may therefore act unlawfully. Ignorance would provide no defence to them personally, nor to the Council for which they were working’.

Whilst the following general principles apply, each case must be treated on its own facts, and legal advice MUST be sought as necessary:

  • If the consent of the service-user is obtained, then no further authorisation would be required;
  • If consent is not obtained but no privacy settings are in operation to prevent viewing, then the material available on the sites can be regarded as ‘open source’, and so a single viewing would not constitute ‘directed surveillance’ under RIPA and no authorisation would be required under that Act;
  • However, the Chief Surveillance Commissioner has made clear his view that repeat viewing of sites by staff may constitute ‘directed surveillance’ and if done covertly (i.e. without the knowledge of that person) then this would be ‘covert surveillance’. This would require authorisation under the Act in the form of a warrant from a magistrate.* It is for the employer to ensure that any covert surveillance is properly authorised, recorded and, most importantly, legally justifiable.

*(The Protection of Freedoms Act 2012 amended the regulation of investigatory powers legislation to reduce the circumstances in which a surveillance authorisation under RIPA can be granted by a local authority, rather than by a court. A local authority can now only grant an authorisation under RIPA for the use of directed surveillance for the investigation of criminal offences which attract a maximum custodial sentence of 6 months or more or relate to the underage sale of alcohol or tobacco. Surveillance as part of any other investigations, e.g. child welfare/protection, can only be authorised by a court).

The Commissioner, in his Annual Report 2016-17, stated (at para 4.3) that the ‘steady expansion in the use of the social media and internet for the purposes of investigative work provides a striking example of a potential new problem……Local authority officials, vested with responsibilities for… the care of children and vulnerable adults, are, like everyone else, permitted to look at whatever material an individual may have chosen to put into the public domain. This is entirely lawful, and requires no authorisation. However, repeated visits to individual sites may develop into activity which, if it is to continue lawfully, would require appropriate authorisation’. (Emphasis added).

What constitutes ‘repeat viewing’ is not set out and will depend on the facts of each case.

The report notes (at para 15.2) that:
When individuals choose to go public or advertise themselves, they cannot normally complain that those who look at their social media sites are disregarding their rights to privacy. However if the study of an individual site becomes persistent, issues under the legislation [Regulation of Investigatory Powers Act] may arise’.

In the April 2017 letter to local authorities, the Commissioner set out that:
RIPA issues do not normally arise at the start of any investigation which involves accessing ‘open source’ material, but what may begin as a lawful overt investigation can drift into covert surveillance which falls within the legislation.'

See also the Covert Surveillance and Property Interference Code of Practice.


3. Use of Social Media by Staff in a Personal Capacity

Social media can be a useful learning and networking tool. However, caution must be exercised. It is important to act in a way that does not compromise either the confidentiality of service-users or the safety and security of the staff and their families.

Social media can blur the boundaries between the personal and the professional, which staff should be wary of when communicating with service users.

Professionals should be mindful of the implications for their own right to privacy and private life. Staff need to be vigilant to keep their own identity safe and that of friends and families. They need to consider the implications and risks of putting personal information on social media sites such as work, contact details and photographs of work colleagues and family members, and should not do so if they think their privacy and safety will be compromised. They may want to ask family and friends to bear this in mind when posting information, as for example inappropriate pictures could open them up to criticism or pictures of their family online could create difficulties.

It should not be assumed that privacy settings will prevent information reaching a wider audience than that intended.

Inappropriate social media postings from personal accounts have led to Health and Care Professions Council (HCPC) proceedings against professionals.

Health and Care Professions Council Guidance on Social Media sets out these Top Tips for professionals using social media in a personal capacity, to avoid breaching their professional responsibilities:

  • Think before you post. Assume that what you post could be shared and read by anyone;
  • Think about who can see what you share and manage your privacy settings accordingly. Remember that privacy settings cannot guarantee that something you post will not be publicly visible;
  • Maintain appropriate professional boundaries if you communicate with colleagues, service users or carers. It is not appropriate to ‘accept’ service users and their carers as online ‘friends’ in a personal network, as it creates a personal relationship outside of the workplace;
  • Do not post information which could identify a service user unless you have their permission;
  • Do not post inappropriate or offensive material. Use your professional judgement in deciding whether to post or share something;
  • If you are employed, follow your employer’s social media policy;
  • When in doubt, get advice;
  • IF YOU THINK SOMETHING COULD BE INAPPROPRIATE OR OFFENSIVE, DO NOT POST IT.


4. Use of Social Media by Staff in a Professional Capacity

4.1 Information-gathering during Assessments

Searches of the social media activity of service-users and their associates can offer a useful means of information-gathering as part of the Assessment process.

For example, it can be used to check some aspects of a service user’s and/or their family’s/associate’s account of current or recent events which might affect the safety of a child or children, such as:

  • Possible presence within the family environment of a Person Posing a Risk to Children;
  • Presence of known risky behaviour, such as drug and alcohol abuse;
  • Where there are reasonable grounds to believe that information given by a family as part of the assessment is misleading or untrue e.g. the claimed separation of a couple where domestic abuse is known to be a significant risk factor.

This approach has been advocated recently in court cases and a serious case review.

The Cafcass Operating Framework states (emphasis added) (at para 2.24)
While the [Family Court Adviser] will need to undertake various enquiries to ascertain what has been going on in a family, including social media enquiries where relevant and where the court agrees, it is important to keep the focus on the child’s daily lived experience rather than on any dramatic scenarios put forward by either parent’.

In the 2017 Serious Case Review in relation to Child G, the following learning was identified (para 1.3):
When conducting assessments and reassessments of vulnerable families, practitioners may find that including internet and social media checks would enhance and triangulate information given by parents’.

The rationale stated to underpin this learning is that:
Checks on the internet and social media can provide publicly available information about lifestyle and relationships to inform assessments’.

The review report also noted that:
…Such checks, including on social media, in other cases could, for example, contradict denials of contact with dangerous ex-partners’.

The Review included a Recommendation that the safeguarding boards involved:
Consider how best to enable practitioners to access and use relevant internet and public facing social media content to enhance their assessments. This should include policy and practice guidance’.

4.2 Service of Court Documents

The Honourable Mr Justice Holman, in the case of Re: T (A Child) [2017] EWFC 19 said he wanted the judgment to highlight that social media may be a useful tool for tracing parents who are being served with notice of adoption.

So I do wish to highlight by this short judgment that, in the modern era, Facebook may well be a route to somebody such as a birth parent whose whereabouts are unknown and who requires to be served with notice of adoption proceedings. I do not for one moment suggest that Facebook should be the first method used, but it does seem to be a useful tool in the armoury which can certainly be resorted to long before a conclusion is reached that it is impossible to locate the whereabouts of a birth parent. Of course, not everyone is on Facebook but, in this particular case, a relatively socially disadvantaged young mother …. has been found very rapidly by that means’. (paragraph 21)

Courts and local authorities may have local protocols regarding the use of social media for service of court documentation. Legal advice must be sought as appropriate.

N.B. whilst the above case law highlights the use of Facebook, the principle should be applied to all forms of social media.


Further Information

Health and Care Professions Council Guidance on Social Media

Doctors’ Use of Social Media (General Medical Council)

Serious Case Review: Child G

The Cafcass Operating Framework

Re: T (A Child) [2017] EWFC 19

Annual Report of the Chief Surveillance Commissioner 2016-17

Covert Surveillance and Property Interference Code of Practice

End