The use of social media platforms and applications can have overwhelmingly positive benefits for public bodies. However, regulatory action recently taken by the Information Commissioner, has highlighted various pitfalls that public bodies should seek to avoid if allowing staff to use social media as a communication tool.
The use of social media platforms and applications can have overwhelmingly positive benefits for public bodies. These technologies not only provide an effective means by which public bodies can communicate with the public, but also provide a platform for staff to exchange information, organise and make arrangements.
However, regulatory action recently taken by the Information Commissioner, disciplinary cases brought against staff and professionals who misuse social media, and judicial review challenges to central government have highlighted the various pitfalls that public bodies should seek to avoid if allowing staff to use social media as a communication tool.
First, the Information Commissioner has recently released the report “Behind the screens - maintaining government transparency and data security in the age of messaging apps” following a year-long investigation into the use of messaging apps by Ministers and officials at the Department of Health and Social Care (DHSC) during the pandemic. The investigation found that a lack of clear controls and a rapid increase in the use of messaging apps had the potential to lead to important information being lost or insecurely handled. In particular, the Information Commissioner was of the opinion that:
Second, it is important to remember that the use of messaging apps does not remove information from the reach of the Freedom of Information Act 2000. The Information Commissioner has separately set out five key recommendations for public bodies to keep in mind when handling freedom of information (FoI) requests that cover such communications:
Third, there have been two high profile judicial review challenges in which it has been argued that the use of self-destructing messages on insecure platforms is of itself unlawful and undemocratic. We understand that judgment in those proceedings is currently reserved and we recommend that public bodies scrutinise closely any guidance given by the courts about the use of such apps in due course.
Fourth, it is important that public bodies have comprehensive social media policies in place that allow staff to understand what is permitted by the organisation, and the circumstances in which any improper use of social media (whether in private or professional life) may lead to disciplinary or regulatory action being taken. There have now been several high profile cases over the last few years whereby action has been taken against police officers, contractors of the Home Office and doctors for variously sharing information that was regarded as offensive (amongst other things). Staff should be reminded that the use of closed forums are never truly private, and information shared with colleagues using WhatsApp and other social media apps has the potential to harm the reputation of an organisation and staff, and undermine public confidence in the organisation or a profession generally.
Browne Jacobson has a team of experts that can assist public bodies in updating their policies, responding to FoI requests/DSARs and regulatory action, and taking action against staff when social media is misused. Please contact us if you have any questions about this article or require assistance in dealing with these issues.
The same position applies to data subject access requests (DSARs).
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.